PEOPLE OF MI V IVAN LEE PAGE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 5, 2010
Plaintiff-Appellee,
v
No. 291790
Genesee Circuit Court
LC No. 07-021714-FC
IVAN LEE PAGE,
Defendant-Appellant.
Before: WILDER, P.J., and CAVANAGH and M. J. KELLY, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted for the first-degree premeditated murder,
MCL 750.316(1)(a), of Deena Brown. He was sentenced to life imprisonment. He appeals as of
right. We affirm.
Defendant first argues that the trial court erred in granting the prosecutor’s motion to
introduce MRE 404(b) evidence. We disagree. A trial court’s decision whether to admit
evidence will be reversed only for an abuse of discretion. People v Lukity, 460 Mich 484, 488;
596 NW2d 607 (1999).
The trial court granted the prosecution’s motion to admit MRE 404(b) evidence
concerning the deaths of Patricia Peeler and Lisa Price. The court determined that the evidence
was relevant, it was admissible for the proper purpose of establishing identity as well as a
common scheme, plan, or method of committing murder, and the probative value of the evidence
was not substantially outweighed by the danger of unfair prejudice.
To be admissible under MRE 404(b),1 other acts evidence generally must satisfy three
requirements: (1) it must be offered for a proper purpose, (2) it must be relevant, and (3) its
1
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, scheme, plan, or system in doing an act, knowledge, identity, or
(continued…)
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probative value must not be substantially outweighed by its potential for unfair prejudice.
People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004). A proper purpose is one other than
establishing the defendant’s character to show his propensity to commit the offense. People v
VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993), modified 445 Mich 1205 (1994).
We are persuaded that the trial court did not err in finding that the other acts evidence
was admissible to show a common plan, scheme, or system. Evidence of misconduct similar to
that charged is logically relevant to show that the charged act occurred if the charged and other
acts are sufficiently similar to support an inference that they are manifestations of a common
plan, scheme, or system; they need not be part of a single continuing conception or plot. People
v Sabin (After Remand), 463 Mich 43, 63-64; 614 NW2d 888 (2000). Although general
similarity does not alone establish a plan, scheme, or system, if there is such a concurrence of
common features that the various acts are naturally to be explained as caused by a general plan,
the evidence is properly admitted. Id. Distinctive and unusual features are not required to
establish the existence of a common plan or scheme. Id. at 65-66.
Here, defendant was charged with the first-degree murder of Deena Brown. Brown was a
known prostitute whose body was found in a school parking lot in Flint. Her shirt was pulled up
to her neck and she was wearing no shoes and only one sock. The cause of death was ligature
strangulation and the manner of death was homicide. Defendant’s DNA was found on the
sweatshirt that was tied around Brown’s neck, causing her death.2 The other acts evidence
concerned the deaths of Peeler and Price. Price, a prostitute, was found under a tree in a
residential neighborhood in Flint. Price was nude except for a sweatshirt and bra, which were
pulled up around her neck. The cause of Price’s death was manual strangulation and the manner
of death was a homicide. Defendant’s semen was found in Price’s vagina and rectum. Finally,
the body of Peeler, a prostitute, was found near the sidewalk in a residential neighborhood in
Flint. Peeler was nude except that she had on one shoe. Defendant’s semen was found in
Peeler’s vagina. One medical examiner opined that cocaine intoxication was the cause of death,
while another opined that asphyxia by smothering was the cause of death.3
The similarities attendant to the deaths of these three women are striking and support the
conclusion that the evidence was properly admitted to demonstrate a common plan, scheme, or
system of committing murders. All three women were prostitutes. All three were found in a
relatively open area in Flint in varying degrees of undress. There was evidence that all three died
of asphyxiation/strangulation. All three had defendant’s DNA on them, or in Brown’s case, on a
(…continued)
absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
2
Additionally, DNA found on Brown’s underwear was a potential match with defendant.
3
Dr. Ljubisa Dragovic, pathologist, opined that Peeler died of asphyxia by smothering. Dr.
Terry Krznarich, pathologist, initially opined that Peeler died of cocaine intoxication, but then
indicated that nothing in his findings contradicted a cause of death of asphyxia by smothering.
When Dr. Krznarich was asked whether he agreed with Dr. Dragovic’s opinion that Peeler’s
cause of death was asphyxia by smothering, Dr. Krznarich responded in the affirmative.
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sweatshirt tied around her neck. We conclude that the other acts evidence was highly probative,
and its probative value was not outweighed by the danger of unfair prejudice, particularly where
the trial court instructed the jury regarding the limited purpose for which the challenged evidence
was admitted. The trial court did not err in admitting the evidence.
Furthermore, the trial court did not err in finding that admission of the evidence was also
supported under the identity-via-modus-operandi theory. When other acts evidence is offered to
identify the defendant through modus operandi: (1) there must be substantial evidence that the
defendant committed the similar act, (2) there must be some special quality of the act which
tends to prove the defendant’s identity, (3) the evidence must be material to the defendant’s guilt,
and (4) the probative value of the evidence must not be substantially outweighed by the danger
of unfair prejudice. People v Ho, 231 Mich App 178, 186; 585 NW2d 357 (1998).
Regarding whether there was substantial evidence that defendant committed the murders
of Peeler and Price, defendant’s DNA was found on their bodies. There was evidence that both
died of strangulation. Jerome Currie, defendant’s jail cellmate, testified that defendant remarked
to him that he (defendant) liked to “choke hos [sic]” and he “killed those ho’s [sic], but they
can’t prove it; and the jury ain’t gonna believe it because they ho’s [sic] or prostitutes.” The
evidence tends to strongly link defendant to the murders of Peeler and Price. Also, the
distinctive similarities, discussed above, in all three deaths tend to evince defendant’s distinctive
signature. Finally, the other acts evidence is material to defendant’s guilt in the instant case, and
the probative value of the other acts evidence was not outweighed by the danger of unfair
prejudice, particularly where the trial court gave a limiting instruction. Accordingly, the trial
court did not err in admitting the evidence for the purpose of proving identity via modus
operandi.
Next, defendant contends that the prosecutor engaged in repeated instances of misconduct
that deprived him of a fair trial. We disagree. This Court reviews a defendant’s unpreserved
claims for plain error affecting his substantial rights. People v Carines, 460 Mich 750, 762-763;
597 NW2d 130 (1999).
Defendant first points out that the prosecutor elicited testimony from the officer in charge
that the police had allegedly considered and eliminated all other suspects and investigated all
leads until dead ends were reached. The prosecutor also referenced this testimony in her closing
argument. According to defendant, the elicitation of this testimony, as well as the closing
argument remarks, were improper because the police did not actually investigate all reasonable
leads. Assuming that the police did not in fact investigate all reasonable leads, the prosecutor
would not be at fault in eliciting the challenged testimony unless she knew that she was eliciting
perjured testimony. See People v Lester, 232 Mich App 262, 276-277; 591 NW2d 267 (1998)
(stating that the prosecutor’s duty is to correct perjured testimony; she may not knowingly use
false testimony to obtain a conviction). Defendant presents no evidence suggesting that the
prosecutor knowingly elicited perjured testimony.
Assuming, arguendo, that the prosecutor knowingly presented perjured testimony,
defendant cannot demonstrate outcome determinative error in light of the strong, untainted
evidence against him. The day before Brown’s body was found, she was with defendant in
defendant’s house. Lee Plum testified that, after he and Brown had sex in a bedroom of
defendant’s house, defendant ranted and raved regarding Brown having sex in his home.
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Defendant then took Brown into another room for about 30 seconds. Upon their exit of the
room, Brown approached Plum, told him to come back for her and mentioned something about
911. The next day, Brown was found dead in a school parking lot. The cause of death was
strangulation, and the sweatshirt tied tightly around Brown’s neck was the cause of the
strangulation. Defendant’s DNA was found on the sweatshirt, and defendant could not be
excluded as a potential match for the DNA found on Brown’s underwear. The other acts
evidence further implicated defendant. Peeler and Price were prostitutes, like Brown, whose
bodies were found in the same general geographic location as Brown. Defendant’s DNA was
found on Peeler and Price, too. The evidence supports a finding that Peeler and Price died of
asphyxia and manual strangulation, respectively. Currie testified that defendant remarked to him
that he (defendant) liked to “choke hos [sic]” and he “killed those ho’s [sic], but they can’t prove
it; and the jury ain’t gonna believe it because they ho’s [sic] or prostitutes.” Because a
reasonable probability does not exist that defendant would have been acquitted had the alleged
prosecutorial misconduct never occurred, defendant’s claim fails.
Next, defendant argues that the prosecutor improperly vouched for the truthfulness of the
prosecution’s witness, Plum, by implying that she had a special knowledge of that to which Plum
testified. During her closing argument, the prosecutor remarked that Plum “didn’t embellish and
he could have,” Plum “doesn’t make up stuff. Doesn’t give you the perfect story. He tells you
what he can remember and what happened. . . . He didn’t embellish a thing,” and Plum “had no
reason at all to come in here to tell you anything but the truth.” A prosecutor may not vouch for
the credibility of her witnesses by implying that she has some special knowledge of their
truthfulness. People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004). But a
prosecutor may comment on her own witnesses’ credibility during closing argument, especially
when there is conflicting evidence and the question of the defendant’s guilt depends on which
witnesses the jury believes. Id. It seems that the prosecution’s remarks were more along the
lines of an argument that Plum was worthy of belief, rather than a personal guarantee of Plum’s
credibility. The challenged remarks do not necessarily intimate that the prosecutor had some sort
of special knowledge regarding Plum’s truthfulness. The prosecutor was pointing out that
Plum’s testimony was not “perfect” in the sense that Plum admitted to being a crack user,
admitted to having sex with Brown within a few minutes of meeting her on the eve of her death,
and indicated that he was unsure about various details concerning the time that he, defendant,
and Brown were together in defendant’s house on the eve before Brown was found dead. One
could reasonably infer that Plum was being truthful in his testimony considering Plum’s
willingness to share unflattering details about himself and his admission that he was uncertain
about various details concerning defendant’s interaction with Brown on the night in question.
We do not believe that the challenged remarks constitute misconduct. Even if they did,
defendant cannot demonstrate prejudice, as discussed above.
Next, defendant alleges that the prosecutor improperly appealed to the jury’s sympathy
during her closing argument. The prosecutor stated that Brown, Peeler, and Price “maybe didn’t
have a lot of dignity in life,” defendant “gave them no dignity in death,” and “justice demands”
that defendant be found guilty. Arguments which are little more than an appeal to the jury’s
sympathy for the victim are improper. People v Watson, 245 Mich App 572, 591; 629 NW2d
411 (2001). Although the prosecutor’s remarks, particularly the one concerning the victims not
having dignity in life, might be construed as an improper appeal to the jury’s sympathy, we do
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not believe that the comments were so inflammatory as to prejudice defendant, particularly
where the jury was instructed to not allow sympathy to play a role in its verdict.
Next, defendant argues that the prosecutor improperly suggested to the jury during
closing argument that her burden of proof was less than guilt beyond a reasonable doubt. The
prosecutor stated: “This trial, ladies and gentlemen, is about the road to the truth. Don’t get off
on exits, the dead ends. Look at what the evidence is, not what it isn’t.” Defendant asserts that
the prosecutor’s comment deprived defendant of his right to be acquitted on the basis of a lack of
evidence. We are not persuaded that the comment, “[l]ook at what the evidence is, not what it
isn’t,” conveyed to the jury that it was prohibited from acquitting defendant on the basis of a lack
of evidence on the prosecutor’s part. Rather, it seems that the challenged remark was an attempt
to focus the jury’s attention to the actual evidence in the case, rather than on side issues or
theories not supported by the evidence. There was no prejudicial error here, particularly where
the jury was instructed that the burden of proof was guilt beyond a reasonable doubt.
Finally, defendant argues in his standard 4 brief that the prosecutor knowingly presented
false evidence when she elicited trial testimony from Jeffrey Nye, forensic scientist and DNA
expert, that defendant could not be excluded as a potential match for the DNA found in Brown’s
underwear. Defendant contends that the prosecutor knew that this testimony was perjured
because Nye had testified at the preliminary examination that defendant was excluded as a
possible DNA match with regard to Brown’s underwear. Defendant is correct in that there is a
discrepancy between Nye’s preliminary examination testimony and his trial testimony. At the
preliminary examination, Nye testified that defendant was “excluded” as a possible match to the
DNA on Brown’s underwear. At trial, Nye testified that defendant could not be excluded as a
potential match to the DNA found on Brown’s underwear. Defendant does not elaborate on why
he believes that the prosecutor is at fault for Nye’s inconsistent testimony. The prosecutor does
have a duty to correct perjured testimony; she may not knowingly use false testimony to obtain a
conviction. Lester, 232 Mich App at 276-277. Although the prosecutor elicited trial testimony
from Nye that contradicted his preliminary examination testimony, it is not clear that the
prosecutor knowingly presented perjured testimony. It is possible that Nye changed his mind
about the possibility of whether defendant could be a DNA match or that Nye simply misspoke
at the preliminary examination. Defense counsel could have impeached Nye on this point, but
failed to do so. In any event, to the extent that the prosecutor did knowingly present perjured
testimony, there was no outcome determinative error, for the reasons discussed above.
Finally, defendant asserts that his trial counsel was ineffective. We disagree. The
determination of whether a defendant has been deprived of the effective assistance of counsel
presents a mixed question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002). The court must first find the facts and then decide “whether those facts
constitute a violation of the defendant’s constitutional right to effective assistance of counsel.”
Id. The trial court’s factual findings are reviewed for clear error, while its constitutional
determinations are reviewed de novo. Id.
To establish ineffective assistance of counsel, a defendant must show that: (1) counsel’s
performance was below an objective standard of reasonableness under prevailing professional
norms, (2) there is a reasonable probability that, but for counsel’s error, the result of the
proceeding would have been different, and (3) the resultant proceedings were fundamentally
unfair or unreliable. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). “Effective
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assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004).
Defendant first claims that his counsel was ineffective for failing to object to various
instances of alleged prosecutorial misconduct. As discussed above, either there was no
prosecutorial misconduct, or, to the extent that there was, no prejudice resulted. A failure to
pursue a meritless objection does not constitute ineffective assistance of counsel. See People v
Rodriguez, 212 Mich App 351, 356; 538 NW2d 42 (1995). Insofar as misconduct did occur,
defendant cannot establish that, had counsel objected to the misconduct, there is a reasonable
probability that the outcome of the trial would have been different.
Defendant also claims in his standard 4 brief that his counsel was ineffective for failing to
hire a DNA expert to challenge the prosecution’s DNA evidence. Decisions regarding what
evidence to present and whether to call or question witnesses are presumed to be matters of trial
strategy. People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999). The failure to call
a witness constitutes ineffective assistance of counsel only if it deprives the defendant of a
substantial defense. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). Not
considering the inconsistent testimony regarding whether defendant’s DNA was found on
Brown’s underwear, it was uncontroverted that defendant’s DNA was found on the sweatshirt
tied around Brown’s neck, in Price’s vagina, and in Peeler’s vagina. Defendant does not suggest
that the DNA evidence was faulty in some way, nor does he elaborate upon how a DNA expert
would have bolstered his defense. A defense DNA expert would most probably have had to
make some critical concessions regarding the strong likelihood that defendant was a match for
the DNA found on the victims. Accordingly, defendant cannot demonstrate that, had his counsel
presented the testimony of a defense DNA expert, there is a reasonable probability that defendant
would have been acquitted.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly
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