PEOPLE OF MI V GREGORY RYAN TERRY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 12, 2010
Plaintiff-Appellee,
v
No. 292734
Macomb Circuit Court
LC No. 2008-001876-FC
GREGORY RYAN TERRY,
Defendant-Appellant.
Before: ZAHRA, P.J., and TALBOT and METER, JJ.
PER CURIAM.
Gregory Terry appeals as of right his jury trial convictions1 for five counts of assault with
intent to commit murder (AWIM)2 and five counts of possession of a firearm during the course
of a felony (felony-firearm).3 Terry contends that his convictions cannot be sustained based on
several incidents of prosecutorial misconduct and the ineffective assistance of counsel. Terry
also argues that his pre-arrest silence was improperly used for impeachment and as substantive
evidence of guilt. We affirm.
Terry raises several alleged instances of prosecutorial misconduct including the
solicitation of testimony from a police officer that a co-defendant was administered a polygraph
in order to bolster that witness’ credibility. Terry also argues that reference by the prosecutor to
the presence of a minor child at the scene of the shootings in his closing argument and at
sentencing was targeted to evoke the sympathy of the jury and to improperly sway the trial court
in imposing sentence. The prosecutor’s reference in his opening statement that various witnesses
were afraid to testify was improper, according to Terry, because there was no evidence deduced
at trial to support such an assertion. Terry further implies that the cumulative nature of these
instances of prosecutorial misconduct deprived him of a fair trial.
1
Terry was sentenced to 18 to 30 years’ imprisonment for each of his AWIM convictions and
two years’ imprisonment for each of his felony-firearm convictions.
2
MCL 750.83.
3
MCL 750.227b.
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During the cross examination of Detective Kevin Nelson, defense counsel implied
through questioning this witness that the police investigation of the shooting incident was inept
and that the identical charges were also brought against a co-defendant; the suggestion being that
the co-defendant was the shooter and not Terry. When re-examined by the prosecutor, this
witness was directly asked whether the co-defendant submitted to a polygraph. The officer
acknowledged a polygraph examination was administered but did not indicate the result of the
test. Defense counsel objected and the trial court immediately directed the jury to disregard any
reference to the polygraph test indicating, “It’s not relevant and has no bearing in this case
whatsoever.”
Terry asserts that this isolated reference to the administration of a polygraph test
necessitated a mistrial and that the failure of counsel to seek such a remedy constituted
ineffective assistance. Addressing this matter as an issue of prosecutorial misconduct we note
that although reference to the administration of a polygraph test is not admissible in a criminal
trial, “not every [such] reference to a polygraph examination requires reversal.”4 “A mistrial
should be granted only for an irregularity that is prejudicial to the rights of the defendant and
impairs his ability to get a fair trial.”5 While it was improper for the prosecutor to make this
direct inquiry, Terry cannot demonstrate prejudice. This was an isolated reference to the
administration of a polygraph test that did not indicate the result. Defense counsel objected to
the question and the trial court provided a curative instruction to the jury before any further
questioning of this witness resumed. While Terry contends that the prosecutor’s question
constituted an improper attempt to bolster the credibility of this witness, when viewed in context
it appears to have been directed to address defense counsel’s implication that the police
investigation was not thorough and that Terry’s co-defendant was being prosecuted for the exact
same acts rather than as an aider and abettor. While this does not excuse the prosecutor from
having improperly posed this question to the witness, given its context and limited nature, along
with the trial court’s curative instruction to the jury, the reference does not rise to the level of
necessitating the grant of a mistrial. Based on our determination that this isolated reference to
the administration of a polygraph test did not warrant a mistrial, Terry’s related assertion of
ineffective assistance of counsel for the failure to request such a remedy is not sustainable.6
Terry also contends misconduct arising from references made by the prosecutor during
closing argument and at sentencing regarding the presence of a minor child at the scene of the
shooting even though the child was not identified as a victim in regard to the charges pursued.
Terry asserts that such a reference was improper because it was specifically designed to evoke
jury sympathy and to sway the trial court in its imposition of a sentence. Although a prosecutor
may not appeal to the jury to sympathize with a victim7, a prosecutor is permitted wide latitude
in his arguments regarding the evidence presented and all reasonable inferences arising there
4
People v Kahley, 277 Mich App 182, 183-184; 744 NW2d 194 (2007).
5
People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995) (internal citations omitted).
6
People v Brown, 279 Mich App 116, 142; 755 NW2d 664 (2008) (“It is well established that
defense counsel is not ineffective for failing to pursue a futile motion.”).
7
People v Watson, 245 Mich App 572, 591; 629 NW2d 411 (2001).
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from.8 It is generally accepted that a prosecutor need not use the least prejudicial evidence
available to establish a fact at issue, nor must he state the inferences arising from the evidence in
the blandest possible terms.9
In the portions of the transcripts relied on by Terry as demonstrating misconduct, the
prosecutor was referencing the four-year-old child of one of the victims who was present at the
home where the shooting occurred. The child’s presence was confirmed during testimony
elicited from one of the witnesses during the trial. When viewed in context, the mention of the
child by the prosecutor during closing arguments did not comprise an attempt to improperly
solicit jury sympathy, but merely referenced a fact established in the record to emphasize the
serious nature of Terry’s conduct. Although Terry also suggests that the prosecutor’s references
to this child during sentencing comprised misconduct he fails to explain how such a comment at
this point in the proceedings impacted his right to a fair trial. “An appellant may not merely
announce a position and leave it to this Court to discover and rationalize the basis for his claims,
nor may he give only cursory treatment with little or no citation of supporting authority.”10 Even
if we were to assume that Terry is seeking this Court to view this contention of error as somehow
impacting the propriety of his sentencing, such a position is unavailing. The sentence imposed
by the trial court was within the guidelines range and is presumptively valid.11 There is also no
indication in the sentencing transcript that the judge used this information, or any other facts,
such as Terry’s absconding after the jury rendered its verdict, to enhance his sentence. Because
we do not find the prosecutor’s reference to the presence of the minor child during closing
arguments or at sentencing to constitute misconduct, Terry’s assertion of error is rejected.
As further substantiation of his contention of misconduct by the prosecutor, Terry cites to
opening statements where the prosecutor indicated that various witnesses were afraid to testify,
which was not substantiated at trial. “A prosecutor may not make a statement of fact to the jury
that is not supported by evidence.”12 Reversal is not warranted for a prosecutor's statement
during opening arguments that certain evidence will be presented even if that evidence is not
forthcoming at trial, unless the statements were made in bad faith by the prosecutor or resulted in
prejudice to the defendant.13
While no evidence regarding the fear of the witnesses to testify was presented at trial,
there is also no indication that the prosecutor was acting in bad faith when the comment was
made. A review of the transcript reveals that the prosecutor was attempting to explain to the jury
why he was unable to precisely describe the anticipated testimony of the witnesses. Even if the
statement is construed to have been detrimental to Terry, there is nothing in the record to indicate
8
People v Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005).
9
People v Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007).
10
People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998).
11
People v Bennett, 241 Mich App 511, 515-516; 616 NW2d 703 (2000).
12
People v Unger, 278 Mich App 210, 241; 749 NW2d 272 (2008).
13
People v Wolverton, 227 Mich App 72, 77; 574 NW2d 703 (1997).
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that it was actually prejudicial or impacted the outcome of the proceedings. The jury had the
opportunity to closely observe the witnesses and discern that they lacked any fear in testifying.
The trial court also instructed the jury at the conclusion of the proceedings that the statements of
the attorneys were not to be construed as evidence. Because “[j]urors are presumed to have
followed their instructions, and instructions are presumed to cure most errors,” Terry has failed
to demonstrate that the prosecutor’s statement comprised misconduct or was of sufficient
significance to impact the outcome of the trial.14
Terry further contends that the cumulative effect of the various instances of the alleged
misconduct by the prosecutor merits reversal of his convictions. The cumulative effect of several
instances of prosecutorial misconduct warrants reversal only if the effect of the misconduct was
so seriously prejudicial that is resulted in denying a defendant a fair trial.15 Because we do not
find an aggregate of errors as alleged by Terry, “a cumulative effect of errors is incapable of
being found.”16
Terry also contends that his counsel was ineffective in failing to object to the provision of
expert testimony by a lay witness or address a procedural error regarding his bind over for trial.
Whether a defendant has been deprived of the effective assistance of counsel comprises a mixed
question of fact and law.17 Because Terry did not establish a testimonial record regarding his
ineffective assistance of counsel claim, our review is limited to mistakes apparent on the
record.18
Effective assistance of counsel is presumed, and a defendant bears a heavy burden of
proving otherwise.19 To establish ineffective assistance of counsel, a defendant is required to
demonstrate: (1) “that counsel’s performance fell below objective standards of reasonableness”
under prevailing professional norms; (2) that there is a reasonable probability that, but for
counsel’s error, the result of the proceedings would have been different, and (3) that the resultant
proceedings were fundamentally unfair or unreliable.20 Counsel’s performance is to be measured
against an objective standard of reasonableness and without the benefit of hindsight, as this
Court will not substitute its judgment for that of counsel regarding matters of trial strategy.21
Specifically, Terry asserts that his counsel was ineffective for failing to object to a lay
witness offering expert testimony. The challenged testimony pertained to a brief exchange at
14
People v Chapo, 283 Mich App 360, 370; 770 NW2d 68 (2009).
15
People v McLaughlin, 258 Mich App 635, 649; 672 NW2d 860 (2003).
16
People v Mayhew, 236 Mich App 112, 128; 600 NW2d 370 (1999).
17
People v Dendel, 481 Mich 114, 124; 748 NW2d 859 (2008).
18
People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000).
19
People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002).
20
People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007 , citing Strickland v
Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
)
21
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
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trial where a police officer was asked to opine whether it was “scientifically possible” for the codefendant, who was five feet three inches in height, to have reached over the top of a Chevy
Blazer to discharge a weapon while driving the vehicle. The officer’s response was equivocal at
best, indicating, “I can only guess no.” A lay witness may testify regarding their opinion and
resultant inferences if: 1) the opinions and inferences are “rationally based on the perception of
the witness” and 2) the opinions and inferences are either “helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue.”22
Contrary to Terry’s
characterization, the referenced testimony is not the equivalent of a lay witness proffering expert
testimony. The opinion solicited is simply premised on the witness’ own perception and
knowledge of the size of the specific vehicle and the difficulty of driving while simultaneously
discharging a firearm. Such testimony could assist the trier of fact in determining who
discharged the firearm and from what position within the vehicle. Additionally, the officer’s
response cannot be interpreted as prejudicial, given the officer’s equivocation. The brief nature
of the response also renders it unlikely that the jury afforded the opinion any significant weight
or that its elicitation impacted the outcome of the proceedings given the plethora of other
testimony identifying Terry as the shooter.
Terry also asserts the ineffective assistance of counsel based on the failure of his attorney
to seek to quash his bind over because the prosecution failed to orally make the bind over
request. Terry does not challenge the actual decision for bind over. We note that Terry cites to
absolutely no authority to support his implication that the prosecution is required to make such a
motion to bind a defendant over for trial. Contrary to Terry’s argument, Michigan law only
requires a district court to bind a defendant over for trial when it finds probable cause that a
crime was committed and probable cause that defendant committed the crime.23 As Terry
recognizes, while it may be customary practice for a prosecutor to orally request a bind over, the
failure to do so does not equate to the violation of a required procedure. The failure of defense
counsel to object to a variation in customary practice that had no impact on the outcome of the
underlying proceeding cannot be deemed to rise to the level of ineffective assistance of counsel.
And, because we find no errors evidencing ineffective assistance on the part of defense counsel
to aggregate, Terry’s contention of cumulative error must again fail.24
Finally, Terry asserts that his right against self-incrimination was violated because of
questions posed by the prosecutor pertaining to his pre-arrest silence. While the trial court
determined that evidence of pre-arrest silence could be used for purposes of impeachment, Terry
contends that the prosecutor used it as substantive evidence of guilt. Specifically, Terry contends
that the challenged exchange involving his failure to voluntarily go to police regarding his
innocent involvement in the events could not be construed as being used for impeachment, as it
did not involve the use of any contradictory statements.
22
MRE 701.
23
MCL 766.13.
24
Mayhew, 236 Mich App at 128.
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Contrary to Terry’s contention, a defendant may be impeached on cross-examination by
inconsistent acts.25 In addition, “the right against self-incrimination prohibits a prosecutor from
commenting on the defendant’s silence in the face of accusation, but does not curtail the
prosecutor’s conduct when the silence occurred before any police contact.”26 “[A] prosecutor
may comment on a defendant’s failure to report a crime when reporting the crime would have
been natural if the defendant’s version of the events were true.”27
The prosecution’s queries were consistent with a recognized use of pre-arrest silence for
impeachment and structured to highlight the inconsistency between Terry’s failure to go to
police and his proclamations of innocence. There was only a very limited reference to his prearrest silence, which was not subsequently addressed through further questioning or even
mentioned in closing argument. The restricted and limited nature of the inquiry, without any
further reference, serves to effectively undermine and fails to support Terry’s assertion of the
improper use of his pre-arrest silence by the prosecutor.
Affirmed.
/s/ Brian K. Zahra
/s/ Michael J. Talbot
/s/ Patrick M. Meter
25
See Jenkins v Anderson, 447 US 231, 238; 100 S Ct 2124; 65 L Ed 2d 86 (1980).
26
People v Goodin, 257 Mich App 425, 432; 668 NW2d 392 (2003).
27
Id.
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