STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 9, 2010
Plaintiff-Appellee,
v
No. 292494
Washtenaw Circuit Court
LC No. 08-000161-FC
JASON MATTHEW GRONDON,
Defendant-Appellant.
Before: O’CONNELL, P.J., and BANDSTRA and MARKEY, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of second-degree murder, MCL
750.317, stealing or retaining a financial transaction device without consent, 750.157n(1), illegal
use of a financial transaction device, MCL 750.157q, and larceny of less than $200, MCL
750.356(5). Defendant was sentenced to 34 to 51 years for second-degree murder, 2 to 4 years
for illegal use of a financial transaction device, 2 to 4 years for stealing or retaining a financial
transaction device without consent, and to 93 days for larceny of less than $200. We affirm.
Defendant was convicted of murdering his uncle, Robert Green, and of taking and using
Green’s debit card without consent to make numerous purchases thereafter. A car resembling
defendant’s car was visible on surveillance video at a gas station at the approximate time that
Green’s debit card was used to make a purchase there. And, when he was arrested, defendant
had dried blood on his pants and on his hands, which DNA analysis later established came from
Green. During police questioning, defendant confessed to striking Green in the head repeatedly
with a pipe and to disposing of the pipe by throwing it out of his car window while driving away
from Green’s home.
Defendant first argues that his right against self-incrimination was violated when he
confessed to killing Green during a police interrogation. Defendant argues that his confession
was involuntary because he (1) was intoxicated on cocaine, (2) was in intense pain before the
arrest and during his two subsequent interrogations due to kidney stones and an inability to
urinate, (3) was not given medical treatment until after he confessed, and (4) was under the
impression that he would not get medical attention until after he confessed. We disagree.
As this Court recently explained in People v Gipson, 267 Mich App 261, 264; 787 NW2d
126 (2010).
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We review de novo a trial court’s determination that a
waiver was knowing, intelligent, and voluntary. People v Tierney,
266 Mich App 687, 707-708; 703 NW2d 204 (2005). When
reviewing a trial court’s determination of voluntariness, we
examine the entire record and make an independent determination.
People v Shipley, 256 Mich App 367, 372; 662 NW2d 856 (2003).
But we review a trial court’s factual findings for clear error and
will affirm the trial court’s findings unless left with a definite and
firm conviction that a mistake was made. People v Sexton (After
Remand), 461 Mich 746, 752; 609 NW2d 822 (2000). Deference
is given to a trial court’s assessment of the weight of the evidence
and the credibility of the witnesses. Id.
“Statements of an accused made during custodial interrogation are inadmissible unless
the accused voluntarily, knowingly and intelligently waived his Fifth Amendment rights.”
Gipson, 267 Mich App at 264. “A waiver is voluntary if it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception.” Id. at 264-265. In examining
the totality of the circumstances surrounding the interrogation, we consider (1) the duration of
the defendant’s detention and questioning, (2) the age, education, intelligence, and experience of
the defendant, (3) whether there was unnecessary delay of the arraignment, (4) the defendant’s
mental and physical state, (5) whether the defendant was threatened or abused, (6) any promises
of leniency, and (7) whether the defendant was deprived of food, sleep or medical attention.
Sexton, 461 Mich 753; Gipson, 267 Mich App at 265.
Defendant does not dispute that he confessed while in custody and after receiving a
Miranda warning.1 Likewise, he does not dispute that the waiver of his right against selfincrimination was knowing and intelligent. At issue, then, is whether defendant’s confession
was voluntary.
Contrary to defendant’s claims, there was no evidence presented that the police withheld
medical treatment in order to force defendant to confess. The videotaped portion of the
interview did not show coercive conduct on the part of the police officers, or that defendant
made statements in response to coercion. Although contradicted by defendant, Saline Police
Department Detective Don Lupi specifically denied telling defendant that he would only receive
medical treatment if he answered questions. The fact that police officers asked defendant if he
could answer a few more questions before receiving treatment, and that defendant responded
affirmatively, weighs heavily against defendant’s argument that his statements were involuntary.
Moreover, at no time during the interview did defendant indicate that he wanted the interview to
stop for any reason. Also, that defendant was able to stand up and demonstrate how he struck
Green suggests that his pain was not as severe as he now claims. Finally, although there was
evidence that defendant had ingested crack cocaine, that occurred at least 15 hours before the
interview at issue. Moreover, drug intoxication is not dispositive on this issue. Gipson, 287
Mich App at 265.
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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Additionally, other factors support the trial court’s determination that the confession was
voluntary. Defendant had been in custody for less than 15 hours, and the interrogation was short,
lasting only 45 minutes. He had committed other offenses and previously served time with the
Michigan Department of Corrections, so he was likely familiar with police procedure and
techniques. Considering the totality of the circumstances, the trial court did not err in concluding
that defendant’s statements were made voluntarily. Sexton, 461 Mich 753; Gipson, 267 Mich
App at 265.
Defendant next argues that the prosecutor committed misconduct during her rebuttal
closing argument when she interjected her personal beliefs, denigrated the defense, and inflamed
the jurors’ passions and prejudice against him. These assertions are based on the following
comments:
One thing that truly genuinely offended me was any culpability, any
responsibility that defense counsel put on Mr. Green. He wasn’t taking his meds,
really? He was at his own house working on his own car minding his own
business when [defendant] went there wanting money. Shame on them. Shame
on them. Mr. Green had [sic] nothing that he did that makes him in any way, any
possible way, even minutely responsible for what happened that day, nothing.
And you will not hear anything in the instructions that indicates anything
to that affect [sic] and that’s offensive.
To properly preserve a claim of prosecutorial misconduct, a defendant must make a
timely and contemporaneous objection. People v Callon, 256 Mich App 312, 329; 662 NW2d
501 (2003). Defendant failed to object to the challenged conduct. Therefore, his unpreserved
assertion of prosecutorial misconduct is reviewed for plain error affecting substantial rights.
People v Thomas, 260 Mich App 450, 453-454; 678 NW2d 631 (2004); Callon, 256 Mich at 329.
Under this standard, this Court will reverse the jury’s verdict only where it determines “that
although defendant was actually innocent, the plain error caused him to be convicted, or if the
error ‘seriously affected the fairness, integrity, or public reputation of judicial proceedings,’
regardless of his innocence.” Id. at 454, quoting People v Ackerman, 257 Mich App 434, 449;
669 NW2d 818 (2003). This Court considers issues of prosecutorial misconduct on a case-bycase basis by examining the record and evaluating the remarks in context, and in light of
defendant’s arguments. Thomas, 260 Mich App at 454. The prosecutor’s remarks 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 Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008).
Although the prosecutor’s statement that she was “offended” could be considered a
personal belief, and her comment that defendant should be ashamed for making a provocation or
heat of passion argument could be considered derogatory, viewed in context, the prosecutor’s
comments were extremely brief, were made only in response to defendant’s closing arguments,
and were not likely to divert the jury’s attention from the evidence presented in this case. “‘[A]n
otherwise improper remark may not rise to an error requiring reversal when the prosecutor is
responding to the defense counsel’s argument.’” Watson, 245 Mich App at 593, quoting People
v Kennebrew, 220 Mich App 601, 608; 560 NW2d 354 (1996). Although passionate, the
prosecutor’s argument was intended to convey to the jury that there was absolutely no evidence
indicating that defendant was provoked by Green or that defendant acted in the heat of passion.
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A prosecutor need not present her argument in the blandest of terms. People v Marji, 180 Mich
App 525, 538; 447 NW2d 835 (1989).
Moreover, the trial court instructed the jury several times that they were the sole judges
of the evidence and that the attorneys’ statements and arguments were not to be considered as
evidence. Thus, even if defendant could show that the prosecutor engaged in misconduct that
had a prejudicial effect, it was presumably cured by the trial court’s instructions. “It is well
established that jurors are presumed to follow their instructions.” People v Graves, 458 Mich
476, 486; 581 NW2d 229 (1998). Hence, there was no plain error.
Defendant’s final argument is that the sentencing court erred in scoring OV 7 at 50
points. We disagree. Defendant preserved this issue by presenting specific challenges to the
scoring of OV 7 at the sentencing hearing. MCL 769.34(10); People v Kimble, 470 Mich 305,
309; 684 NW2d 669 (2004).
“A sentencing court has discretion in determining the number of points to be scored
[when calculating the sentencing guidelines], provided that evidence of record adequately
supports a particular score.” People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002).
Thus, we review the scoring to determine whether the sentencing court properly exercised its
discretion and whether the evidence adequately supported a particular score. People v Steele,
283 Mich App 472, 490; 769 NW2d 256 (2009). A trial court’s scoring decision will be upheld
if there is any evidence in support. Id. We review issues involving the interpretation or
application of the statutory sentencing guidelines de novo. People v Morson, 471 Mich 248,
255; 685 NW2d 203 (2004).
OV 7 addresses aggravated physical abuse, and is to be scored at 50 points if the “victim
was treated with sadism, torture, or excessive brutality or conduct designed to substantially
increase the fear and anxiety a victim suffered during the offense.” MCL 777.37(1)(a). OV 7
was originally scored at zero points. However, at sentencing, the prosecutor argued that OV 7
should be scored at 50 points based on defendant’s conduct:
I would just argue that given the nature of this offense, given the fact that this
defendant chased that man around his basement and beat him and beat him and
beat him and beat him and that man had to push himself, dragging himself across
the floor and he beat him again once he got wedged into a corner, yes, yes OV 7 is
properly scored at fifty points.
In response, defendant admitted that this was “a brutal case,” but argued that there was no
excessive force beyond that necessary to take someone’s life, and thus no excessive brutality.
The sentencing court agreed with the prosecutor and scored OV 7 at 50 points, stating that “the
actual behavior and treatment of [Green] that led to his death could be categorized as nothing
other than excessively brutal.”
The phrase “excessive brutality” is not statutorily defined. “[W]hen terms are not
expressly defined by a statute, a court may consult dictionary definitions.” People v Denio, 454
Mich 691, 699; 564 NW2d 13 (1997). The primary definition of “brutality” found in The
American Heritage Dictionary of the English Language (1996) is, “[t]he state or quality of being
ruthless, cruel, harsh, or unrelenting.” “Excessive” means “[e]xceeding a normal, usual,
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reasonable, or proper limit.” The American Heritage Dictionary of the English Language
(1996). Presuming as axiomatic that in the context of second-degree murder no brutality is
properly characterized as reasonable, proper, or normal, excessively brutal conduct is understood
to be that which exceeds the norm for second-degree murderers.
The medical examiner testified that Green’s “scalp was split” by five blows with a “linear
rod-like object,” possibly a bar or a pipe. Green was also struck across the right eye socket and
eyelid and sustained superficial injuries on his lower right leg. Cassin opined that Green died
from the multiple blunt force impacts to his head, which caused bleeding on the brain surface
and acute swelling of the brain. The medical examiner said that it was “impossible for [him] to
say that any one injury did or might have caused this death.” There was also evidence that
defendant chased Green around his basement, that Green dragged himself across the basement
floor, and that defendant continued to beat Green after he got wedged into a corner.
On appeal, defendant reiterates the argument he made before the sentencing court: that
striking Green with a pipe six times is insufficient evidence of excessiveness because the medical
evidence indicated that all six strikes were necessary to complete the crime of second-degree
murder. Given the medical examiner’s testimony, the premise of defendant’s argument is
incorrect. And, considering the additional evidence presented regarding the nature and extent of
defendant’s attack on Green, we are satisfied that the sentencing court properly exercised its
discretion in concluding that defendant’s severe beating of his uncle with a pipe was excessively
brutal. Therefore, a score of 50 points for OV 7 was proper.
We affirm.
/s/ Peter D. O’Connell
/s/ Richard A. Bandstra
/s/ Jane E. Markey
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