PEOPLE OF MI V BRANDON BERNARD BELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 27, 2010
Plaintiff-Appellee,
v
No. 290691
Kent Circuit Court
LC No. 08-011337-FC
BRANDON BERNARD BELL,
Defendant-Appellant.
Before: FORT HOOD, P.J., and BORRELLO and STEPHENS, JJ.
PER CURIAM.
Following a jury trial, defendant appeals as of right his conviction for two counts of
armed robbery, MCL 750.529, and two counts of possession of a firearm during the commission
of a felony, MCL 750.227b. Defendant was sentenced as a habitual offender, second offense,
MCL 769.10, to 9 to 30 years’ imprisonment each armed robbery conviction and to two years’
imprisonment for each felony-firearm conviction. For the reasons set forth in this opinion, we
affirm the convictions and sentences of defendant.
On June 13, 2008 at approximately 2:00 a.m., Marvin James and Kerron Duncan went to
the Chicken Coop in Grand Rapids, Michigan. While waiting in line, the two got into a verbal
altercation with defendant and Robert Echols.1 Following the verbal altercation, as James and
Duncan exited the Chicken Coop, defendant and Echols displayed handguns. According to
testimony presented at trial, as James was heading toward his car, he placed his hand in his
pocket to access his handgun.2 When Duncan tried to open the passenger’s door, defendant
grabbed at his pocket and both defendant and Echols had their handguns pointed at James and
Duncan. While defendant pointed his handgun at James and Duncan, Echols took James’
handgun and took necklaces from James and Duncan.
The entire incident was captured on the video surveillance of the Chicken Coop. At trial,
the prosecution introduced still shots from the surveillance system and played the video
1
Echols died on October 27, 2008.
2
James has a concealed weapons permit and was carrying a handgun at the time of the incident.
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recording from the surveillance system. Both the still shots and video recording systems clearly
depicted defendant pointing a handgun at the victims.
On July 19, 2008, James and Duncan were at a nightclub in Grand Rapids where they
saw defendant and Echols, defendant was wearing Duncan’s necklace. They telephoned the
police, informing them that the individuals who had robbed them a month earlier were in the
nightclub. Officers McClimans and Bush responded to the call and waited for defendant and
Echols to exit the nightclub and leave, then stopped their vehicle. During the stop, McClimans
took a photograph of defendant and Officer Bush. Finding no contraband, the officers released
defendant and Echols.3 Later, James and Duncan identified defendant in a photographic lineup
as one of the robbers. He was charged with two counts each of armed robbery and felony
firearm. The jury found defendant guilty on all counts, and this appeal ensued.
Defendant first challenges the sufficiency of the evidence to sustain his armed robbery
convictions. We review sufficiency of the evidence claims de novo, viewing the evidence in the
light most favorable to the prosecution to determine if the evidence was sufficient for a rational
jury to find the defendant guilty beyond a reasonable doubt. People v McGhee, 268 Mich App
600, 622; 709 NW2d 595 (2005).
The offense of armed robbery includes: “(1) an assault, (2) a felonious taking of property
from the victim’s presence or person, (3) while the defendant is armed with a weapon described
in the statute.” People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). The elements of
aiding and abetting include: (1) the offense charged was committed by the defendant or some
other person; (2) the defendant performed acts or gave encouragement to assist the commission
of the offense; and (3) the defendant intended to commit the offense or had knowledge that the
principal intended its commission at the time the defendant gave aid and encouragement. Id. at
768.
On appeal, defendant does not challenge any particular element of the charged offense,
but rather asserts that the video recording of the Chicken Coop’s surveillance system admitted at
trial does not support the victims’ testimony that defendant pointed a gun at them during the
robbery. As previously stated, the video recording clearly depicted defendant with a handgun in
his right hand. While the view was blocked to a certain extent, it was reasonably clear that
defendant pointed his handgun at one victim during the armed robbery. Further, a photograph
admitted at trial depicted defendant pointing his handgun at the other victim. The video
recording does not clearly show that defendant or coconspirator Robert Echols removed any
property from the victims; however, both defendant and Echols were in very close proximity
with the victims in the Chicken Coop’s parking lot. Additionally, the video recording depicted
Echols either frisking or reaching towards the victims’ bodies at various points. Notably, the
victims testified that defendant and Echols pointed handguns at the victims. While defendant
pointed his handgun at the victims, Echols took a handgun and two necklaces from the victims.
3
It is not entirely clear from the record why the officers did not arrest defendant at this juncture,
except for testimony offered by Officer Needham who stated that James was not sure if Echols
was the other person involved in the robbery the night he called the police.
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One victim testified that during the armed robbery, defendant repeatedly stated “[t]hat’s how we
do it in Chi-town.” When the police photographed defendant on July 19, 2008, he was wearing
one of the victim’s necklaces. It was for the jury, as factfinder, to determine the weight of the
evidence and credibility of the witnesses. People v Williams, 268 Mich App 416, 419; 707
NW2d 624 (2005).
In this case, the elements of armed robbery were satisfied, where it was undisputed that
Echols committed an assault on the victims by using his handgun to take their property. Carines,
460 Mich at 757. On appeal, defendant claims that he put his handgun away, and merely
observed Echols rob the victims. However, the record directly refutes defendant’s claim. The
trial testimony, video recording, and photographs demonstrate that defendant performed acts to
assist Echols in the armed robbery, namely, defendant used a handgun to assist in facilitating the
armed robbery. The evidence supports that defendant was aware of Echols’ intent to commit
armed robbery at the time defendant gave assistance. “An aider and abettor’s state of mind may
be inferred from all the facts and circumstances.” People v Turner, 213 Mich App 558, 568; 540
NW2d 728 (1995), overruled in part on other grounds People v Mass, 464 Mich 615 (2001).
“Factors that may be considered include a close association between the defendant and the
principal, the defendant’s participation in the planning or execution of the crime, and evidence of
flight after the crime.” Mass, 464 Mich at 569. Here, defendant threatened the victims inside the
Chicken Coop by stating that he would put a hole in their heads. As noted previously, he clearly
participated in the execution of the armed robbery. We defer to the jury’s credibility
determinations and any conflicts in the evidence must be resolved in favor of the prosecution.
People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). Viewing the evidence in a
light most favorable to the prosecution, we conclude that a rational trier of fact could have found
that all of the elements of armed robbery under an aiding and abetting theory were proved
beyond a reasonable doubt. McGhee, 268 Mich App at 622; Carines, 460 Mich at 757, 768.
Defendant, in his standard 4 brief, also challenges the sufficiency of the evidence, as well
as advancing a defense of actual innocence. Defendant’s challenges lack merit. As previously
stated, the evidence admitted at trial coupled with the testimony of the victims was more than
sufficient evidence to sustain defendant’s armed robbery convictions under an aiding and
abetting theory. Contrary to defendant’s assertions, the record is devoid of any evidence that
defendant was merely a spectator, or that he was innocent.
Next, defendant asserts that the trial court should have sua sponte issued a jury
instruction on receiving and concealing stolen property, MCL 750.535, or alternately, that
defense counsel rendered ineffective assistance of counsel for failing to request such an
instruction. We conclude that the allegation of instruction error is waived, because defense
counsel expressed satisfaction with the trial court’s jury instructions. People v Tate, 244 Mich
App 553, 559; 624 NW2d 524 (2001). Moreover, defendant’s allegation of instructional error
lacks merit, because the trial court was not required to sua sponte instruct the jury on the
uncharged offense of receiving or concealing stolen property.
A trial court’s jury instructions must include all of the elements of the charged offense,
and must not exclude any material issues, defenses, or theories, which are supported by the
evidence. People v Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000). This Court
“examines the instructions as a whole, and, even if there are some imperfections, there is no
basis for reversal if the instructions adequately protected the defendant’s rights by fairly
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presenting to the jury the issues to be tried.” People v Martin, 271 Mich App 280, 337-338; 721
NW2d 815 (2006).
A trial court is generally under no obligation to issue a jury instruction on lesser-included
offenses. People v Ramsdell, 230 Mich App 386, 403; 585 NW2d 1 (1998). Moreover,
receiving and concealing stolen property is not a necessarily included lesser offense or even a
cognate lesser offense of the charged offense. People v Hendricks, 446 Mich 435, 443; 521
NW2d 546 (1994); MCL 777.16y; MCL 777.16z; People v Jackson, 158 Mich App 544, 558559; 405 NW2d 192 (1987). We reject defendant’s argument that the trial court should have
issued sua sponte a jury instruction on the offense of receiving or concealing stolen property, and
we find that the trial court’s jury instructions included all of the elements of the charged offense;
they did not exclude any material issues, defenses, or theories as supported by the evidence.
Canales, 243 Mich App at 574. Accordingly, defendant has failed to establish error and
certainly has not established plain error. Carines, 460 Mich at 766-767, 772-773.
Defendant also asserts that defense counsel was ineffective for not requesting an
instruction on receiving or concealing stolen property. To sustain a claim of ineffective
assistance of counsel, a defendant must prove that defense counsel’s “performance was
deficient” and that deficiency “prejudiced the defense.” Strickland v Washington, 466 US 668,
687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Decisions regarding what instructions to request are
left to defense counsel’s discretion as a matter of trial strategy, and we will not second-guess
such decisions. People v Gonzalez, 468 Mich 636, 645; 664 NW2d 159 (2003); People v Henry,
239 Mich App 140, 148; 607 NW2d 767 (1999). The trial court’s jury instructions included all
of the elements of the charged offense, and they did not exclude any material issues, defenses, or
theories as supported by the evidence. Canales, 243 Mich App at 574. Moreover, as discussed
previously, there is no indication that defendant was entitled to a jury instruction on an
uncharged offense. It is well settled that counsel is not ineffective for failing to advocate a
meritless position. People v Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005).
Defendant also raises seven unpreserved issues in a standard 4 brief. We generally
review unpreserved allegations for plain error affecting substantial rights. Carines, 460 Mich at
763-764.
First, defendant essentially argues that he should have been charged with the offense of
aiding and abetting rather than armed robbery. Defendant’s argument is based on a faulty legal
premise as aiding and abetting is not a separate, substantive offense, but is simply a theory of
prosecution, which permits the imposition of vicarious liability for accomplices. People v
Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006). “[D]efendant may be charged as a principal but
convicted as an aider and abettor.” Turner, 213 Mich App at 568. Accordingly, there was no
error in charging defendant with the offense of armed robbery.
Second, defendant asserts that the photographic array was unduly suggestive and he was
deprived of counsel during the photographic line-up. The need to review whether an
independent source exists to support in-court identification testimony arises only when there is
evidence that the lineup procedures used were unduly suggestive. People v Kurylczyk, 443 Mich
289, 303; 505 NW2d 528 (1993). Given that no evidence of an unduly suggestive photographic
lineup occurred in this case, we find no manifest injustice will result from our failure to review
the issue. People v Whitfield, 214 Mich App 348, 351; 543 NW2d 347 (1995). Moreover,
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contrary to defendant’s assertion on appeal, he was not entitled to counsel at this stage of the
proceedings. Kurylczyk, 443 Mich at 301-302. Notably, there is no evidence that defendant was
in custody when James and Duncan viewed the photographic lineups. “In the case of
photographic identifications, the right of counsel attaches with custody.” Id. at 302.
In reaching our conclusion, we also reject defendant’s claim that the victims’
identification of him was based solely on seeing defendant wearing one of the stolen necklaces.
“Identity may be shown by either direct testimony or circumstantial evidence,” People v Kern, 6
Mich App 406, 409-410; 149 NW2d 216 (1967). In this case, the victims unequivocally
identified defendant as one of the robbers at trial, and they identified him in separate
photographic lineups. Even assuming a tainted photographic line-up, the jury viewed the video
recording and still-shot photographs taken the night of the robbery, as well as the photograph of
defendant taken on July 19, 2008 to establish defendant’s identity as a perpetrator. We defer to
the jury’s credibility decisions regarding witness identification testimony. People v Edwards, 55
Mich App 256, 259-260; 222 NW2d 203 (1974).
Third, defendant claims that he was denied discovery when the prosecutor failed to
produce one of the stolen necklaces at trial. This claim lacks merit. “Due process requires the
prosecution to disclose evidence in its possession that is exculpatory and material, regardless of
whether the defendant requests the disclosure.” People v Schumacher, 276 Mich App 165, 176;
740 NW2d 534 (2007). To establish a discovery violation, the defendant must demonstrate: “(1)
that the state possessed evidence favorable to the defendant; (2) that the defendant did not
possess the evidence nor could the defendant have obtained it with any reasonable diligence; (3)
that the prosecution suppressed the favorable evidence; and (4) that had the evidence been
disclosed to the defense, a reasonable probability exists that the outcome of the proceedings
would have been different.” People v Cox, 268 Mich App 440, 448; 709 NW2d 152 (2005).
Defendant failed to establish any of the aforementioned elements for a discovery
violation, where there was no indication that the prosecution possessed the necklace, there was a
reasonable probability that defendant possessed or disposed of the necklace, there was no
indication that the prosecution suppressed the evidence, and there was no reasonable probability
that the outcome of the proceedings would have been different if the necklace was produced. In
his standard 4 brief, defendant contends that the necklace was critical, because the victims’
identifications were based merely on the fact that he was wearing that necklace. However, as
discussed previously, that contention lacks merit, because the victims’ identifications of
defendant were unequivocal. Defendant also suggests that there was no proof of ownership of
the necklace. However, proof of ownership is not an element to the offense of armed robbery.
See Carines, 460 Mich at 757. Further, the record undermines defendant’s position, where the
victim testified about when he first purchased the necklace and its cost, and the prosecution
admitted a photograph of the victim wearing the necklace. Ultimately, there is no indication that
the prosecution improperly suppressed exculpatory evidence in this case. People v Tracey, 221
Mich App 321, 324-325; 561 NW2d 133 (1997). Defendant failed to establish plain error
affecting his substantial rights regarding this purported discovery violation. Carines, 460 Mich
at 763-764.
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Fourth, defendant presents a fair-cross-section challenge related to his jury but wrongly
relies on Batson4 legal principles to support his argument. Based on our thorough review of the
record, we conclude that even a generous reading of this issue provides no relief for defendant.
Here, he failed to set forth a prima facie violation of the fair-cross-section requirement, where
there is no indication that African-Americans were underrepresented in the venire or jury pool,
and that underrepresentation was the result of systematic exclusion. Duren v Missouri, 439 US
357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979); People v Hubbard (After Remand), 217 Mich
App 459, 474, 481; 552 NW2d 493 (1996). Further, the trial court did not err in determining that
the prosecutor dismissed an African-American juror for credible and race neutral reasons.
People v Knight, 473 Mich 324, 344; 701 NW2d 715 (2005).
Fifth, defendant complains that the prosecutor engaged in misconduct by (1) charging
defendant on an inapplicable charge of armed robbery where defendant did not take anything
from the victims, (2) using a tainted process in obtaining an identification, (3) denying defendant
discovery, (4) denying defendant a fair cross section of jurors, (5) preventing defendant from
proving his actual innocence, and (6) making improper remarks. This Court reviews claims of
prosecutorial misconduct on a case-by-case basis. People v Thomas, 260 Mich App 450, 454;
678 NW2d 631 (2004). “The test of prosecutorial misconduct is whether the defendant was
denied a fair and impartial trial.” People v Mesik (On Reconsideration), 285 Mich App 535,
541; 775 NW2d 857 (2009).
The first four complaints lack merit for the reasons previously discussed. Defendant’s
accusations toward the prosecutor’s office are best described as assertions without any factual
basis. There was no evidence presented at trial or by defendant that would lead us to conclude
that anyone in the Kent County prosecutor’s office engaged in any manner of prosecutorial
misconduct. With respect to whether the prosecutor engaged in misconduct by preventing
defendant from proving his actual innocence, the jury ultimately rejected the defense theory.
There is no indication that the prosecution improperly denigrated the defense, see People v
Bahoda, 448 Mich 261, 283, 293; 531 NW2d 659 (1995), or improperly shifted the burden of
proof onto defendant. See McGhee, 268 Mich App at 635. With respect to whether the
prosecutor engaged in misconduct by arguing facts not in evidence or engaging in improper
bolstering of the evidence, we find that the record refutes defendant’s claims. The prosecutor’s
opening statement must generally provide a full and fair statement of the prosecutor’s case and
the facts the prosecutor intends to prove. People v Stimage, 202 Mich App 28, 31; 507 NW2d
778 (1993). The prosecutor’s opening statement did precisely that. Further, the prosecutor did
not improperly argue facts not in evidence during closing argument, but properly argued what
the evidence proved and all reasonable inferences relating to her theory of the case. People v
Walker, 265 Mich App 530, 542; 697 NW2d 159 (2005), vacated in part 477 Mich 856 (2006).
There is no record support that the prosecutor engaged in any improper bolstering. In sum, none
of defendant’s allegations of prosecutorial misconduct have merit, where there is no evidence
that defendant was denied a fair and impartial trial. Mesik, 285 Mich App at 541.
4
Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986).
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Sixth, defendant objects to several instances of bias on the part of the trial court, alleging
that the trial court deprived him from having a fair cross section of the community serve on his
jury; that the trial court improperly denied his Batson challenge; that the trial court’s instruction
regarding the evaluation of witnesses’ testimony amounted to a blatant miscarriage of justice;
and that the trial court demonstrated bias by failing to give a separate aiding and abetting jury
instruction. “A party that challenges a judge for bias must overcome a heavy presumption of
judicial impartiality.” People v Wells, 238 Mich App 383, 391; 605 NW2d 374 (1999). A trial
court’s comments or conduct pierces the veil of judicial impartiality if they “were of such a
nature as to unduly influence the jury and thereby deprive the appellant of his right to a fair and
impartial trial.” People v Collier, 168 Mich App 687, 698; 425 NW2d 118 (1988). In
determining whether the challenged judicial remarks or conduct were improper, we consider
whether the remarks or conduct were of such a nature as to have unduly influenced the jury,
thereby depriving the defendant of his right to a fair and impartial trial. People v Conley, 270
Mich App 301, 308; 715 NW2d 377 (2006).
As discussed previously, defendant failed to establish a prima facie violation of the faircross-section requirement, where there is no indication that African-Americans were
underrepresented in the venire or jury pool, and that underrepresentation was the result of
systematic exclusion. Duren, 439 US at 364. With respect to the Batson challenge, because the
prosecutor’s explanation was based on something other than the race of the juror, the trial court
properly deemed the explanation as race neutral where no discriminatory intent was inherent in
that explanation. Knight, 473 Mich at 337. Next, we conclude that it was not error to give the
instruction on the evaluation of witnesses’ testimony, where the trial court properly instructed the
jury regarding the applicable law. People v Knowles, 15 Mich 408, 412 (1867); People v
Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000). Finally, contrary to defendant’s objection,
we find that the trial court provided appropriate jury instructions regarding armed robbery and
aiding and abetting. Carines, 460 Mich at 757, 768. In sum, defendant failed to overcome the
heavy presumption of judicial impartiality regarding his claims of judicial bias. Wells, 238 Mich
App at 391.
Finally, defendant alleges that defense counsel rendered ineffective assistance of counsel
for essentially failing to present a “valid and pertinent defense.” The record demonstrates that
defense counsel vigorously advocated that defendant was merely present and not a participant in
the armed robbery, but that Echols acted alone. In his standard 4 brief, defendant does not state
what other defenses should have been presented. In reviewing this claim of ineffective
assistance of counsel, we will not substitute our judgment for that of counsel regarding trial
strategy, and even if a strategy fails, it does not render counsel’s assistance ineffective. People v
Kevorkian, 248 Mich App 373, 415-416; 639 NW2d 291 (2001). Defendant failed to overcome
the strong presumption that defense counsel’s performance constituted sound trial strategy.
People v Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004).
Affirmed.
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello
/s/ Cynthia Diane Stephens
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