STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 18, 2012
St. Clair Circuit Court
LC No. 11-000087-NC
JILL BASS DAY,
Before: STEPHENS, P.J., and OWENS and MURRAY, JJ.
Defendant appeals as of right her jury trial convictions of assault with intent to murder,
MCL 750.83, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. The trial court sentenced defendant to serve consecutive prison terms of 15 to
50 years for assault with intent to murder and two years for felony-firearm. We affirm.
I. FACTS AND PROCEDURAL HISTORY
The victim, Steven Podschwit, was shot at six times in his driveway while trying to leave
for work early one morning. Two bullets hit him in the chest and arm. He testified that he
witnessed a dark-colored minivan slowly drive by after the shooting. Other witnesses also
reported seeing a dark blue minivan in the driveway of a house next to the victim’s home. The
police determined that defendant drove a dark blue Honda Odyssey minivan and owned a .45
caliber handgun. However, the police could not locate the handgun and defendant could not
provide an explanation as to where it could be. When the police searched defendant’s house they
found targets used for shooting practice; defendant had visited the shooting range a week before
the incident. Moreover, the police found a torn photograph of the victim’s house and driveway
in defendant’s house. The victim testified that he was receiving blocked phone calls from
someone prior to the incident. These phone calls were traced to a phone number for a prepaid
cell phone for which defendant had phone cards. The victim’s ex-wife also testified that she
received a phone call from a female inquiring about the victim’s address and work location. The
police were able to determine that this phone call came from the same prepaid cell phone. The
jury convicted defendant of assault with intent to murder and felony-firearm.
Defendant moved for a new trial on the ground that the verdict was against the great
weight of the evidence, but the trial court denied the motion. Defendant also filed a motion to
remand with this Court seeking an evidentiary hearing regarding her claim of ineffective
assistance of counsel. This Court denied the motion.
II. GREAT WEIGHT OF THE EVIDENCE
First, defendant argues that the verdict was against the great weight of the evidence. We
We review a trial court’s “denial of a motion for a new trial on the ground that the verdict
was against the great weight of the evidence” for an abuse of discretion. People v Lacalamita,
286 Mich App 467, 469; 780 NW2d 311 (2009). An abuse of discretion standard recognizes that
there is more than one principled outcome. People v Babcock, 469 Mich 247, 269; 666 NW2d
231 (2003). “An abuse of discretion occurs . . . when the trial court chooses an outcome falling
outside this principled range of outcomes.” Id.
A trial court may grant a motion for a new trial based on the great weight
of the evidence only if the evidence preponderates so heavily against the verdict
that it would be a miscarriage of justice to allow the verdict to stand. Conflicting
testimony and questions of witness credibility are generally insufficient grounds
for granting a new trial. Absent exceptional circumstances, issues of witness
credibility are for the trier of fact [People v Unger, 278 Mich App 210, 232; 749
NW2d 272 (2008) (citations omitted).]
The evidence presented does not preponderate so heavily against the verdict that it would
be an injustice to allow the verdict to stand. This case was based on circumstantial evidence, but
“circumstantial evidence and reasonable inferences arising from that evidence can constitute
satisfactory proof of the elements of the crime.” People v Lee, 243 Mich App 163, 167-168; 622
NW2d 71 (2000). Looking at the evidence as a whole, there was enough circumstantial evidence
to support the jury’s verdict. The victim was shot six times with a .45 caliber handgun, and he
witnessed a dark-colored minivan leaving the scene. Witnesses also indentified a dark blue
minivan in the driveway of a house next to the victim’s house. Defendant drove a dark blue
Honda Odyssey minivan and owned a .45 caliber handgun. The police could not locate that
handgun and defendant could not provide an explanation as to its location. When police
searched defendant’s house they found targets used for shooting practice, and evidence showed
that defendant had visited that shooting range a week before the incident. Moreover, police
found a torn photograph of the victim’s house and driveway in defendant’s house. The victim
testified that he was receiving blocked phone calls from someone prior to the incident. These
phone calls were traced to a phone number for a prepaid cell phone for which defendant had
Alternatively, defendant argues that there was insufficient evidence to support a
conviction beyond a reasonable doubt. We disagree.
We review a claim of insufficient evidence de novo, People v Hawkins, 245 Mich App
439, 457; 628 NW2d 105 (2001), with an eye toward determining whether a rational trier of fact
could conclude beyond a reasonable doubt that the essential elements of the crime were proven,
People v Wolfe, 440 Mich 508, 515-514; 489 NW2d 748, amended 441 Mich 1201 (1992). The
evidence must be viewed in a light most favorable to the prosecution. People v Railer, 288 Mich
App 213, 216; 792 NW2d 776 (2010). We defer to the factfinder’s weighing of the evidence and
assessment of the credibility of the witnesses. Wolfe, 440 Mich at 514.
“The elements of assault with intent to commit murder are: (1) an assault, (2) with an
actual intent to kill, (3) which, if successful, would make the killing murder.” People v Brown,
267 Mich App 141, 147-148; 703 NW2d 230 (2005) (quotation marks and citations omitted).
The victim was shot at six times with a .45 caliber handgun, and a dark blue minivan was
seen near the scene. Defendant owned a .45 caliber handgun and she drove a blue minivan.
Police found targets used for shooting practice at defendant’s house, and defendant had visited
that shooting range a week before the incident. The victim testified that he received blocked
phone calls from someone prior to the incident, which police discovered were from a prepaid cell
phone for which defendant had phone cards. Lastly, an intent to kill can be inferred from the use
of a dangerous weapon. See People v Dumas, 454 Mich 390, 403; 563 NW2d 31 (1997). There
was sufficient evidence from which a rational trier of fact could determine beyond a reasonable
doubt that defendant committed assault with intent to murder.
III. IRRELEVANT EVIDENCE
Next, defendant argues that she was denied her due process right to a fair trial when the
prosecutor was permitted to admit irrelevant and highly prejudicial evidence. We disagree.
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.
People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010).
To be admissible, evidence must be relevant. MRE 402. Relevant evidence is “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” MRE 401. “A fact that is ‘of consequence’ to the action is a material fact.” People v
Mills, 450 Mich 61, 67; 537 NW2d 909 (1995). A material fact “need not be an element of a
crime or cause of action or defense, but it must, at least, be in issue in the sense that it is within
the range of litigated matters in controversy.” Id. at 68 (internal quotation marks and citation
Defendant argues that there were 14 different instances where the prosecutor admitted
irrelevant evidence. However, upon examining this evidence, we find that all the evidence had
some tendency to make the existence of a material fact more or less probable. Thus, the trial
court did not abuse its discretion in admitting the evidence.
Defendant also argues that the prosecutor elicited improper opinion testimony from
police officers throughout the trial regarding the value of objects they collected. However,
defendant fails to identify specific references to the record. “A party may not leave it to this
Court to search for the factual basis to sustain or reject its position, but must support its position
with specific references to the record.” Begin v Mich Bell Tel Co, 284 Mich App 581, 590; 773
NW2d 271 (2009).
IV. PROSECUTORIAL MISCONDUCT
Next, defendant argues that the prosecutor engaged in outcome-determinative misconduct
by admitting irrelevant evidence and eliciting improper opinion testimony. We disagree.
Defendant failed to preserve this issue; therefore, our review is for plain error affecting
defendant’s substantial rights. People v Thomas, 260 Mich App 450, 453-454; 678 NW2d 631
(2004). Reversal is only warranted if defendant was actually innocent and the plain error caused
defendant to be convicted or “if the error ‘seriously affected the fairness, integrity, or public
reputation of judicial proceedings,’” regardless of defendant’s innocence. Id. at 454, quoting
People v Ackerman, 257 Mich App 434, 449; 669 NW2d 818 (2003).
“Given that a prosecutor’s role and responsibility is to seek justice and not merely
convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “Issues of
prosecutorial misconduct are decided case by case, and this Court must examine the entire record
and evaluate a prosecutor’s remarks in context.” Id. at 64.
Defendant argues that the prosecutor acted in bad faith by admitting the irrelevant
evidence. However, as discussed above, the evidence that defendant challenges was not
irrelevant. Thus, there is nothing in the record to suggest that the prosecutor acted in bad faith.
People v Noble, 238 Mich App 647, 660-661; 608 NW2d 123 (1999) (“[P]rosecutorial
misconduct cannot be predicated on good-faith efforts to admit evidence.”).
Defendant also argues that the cumulative impact of the claimed errors denied her a fair
trial. “The cumulative effect of several minor errors may warrant reversal where the individual
errors would not. However, in order to reverse on the basis of cumulative error, ‘the effect of the
errors must [be] seriously prejudicial in order to warrant a finding that defendant was denied a
fair trial.’” People v Ackerman, 257 Mich App 434, 454; 669 NW2d 818 (2003), quoting People
v Knapp, 244 Mich App 361, 388; 624 NW2d 227 (2001). Having identified no errors,
defendant has failed to establish her argument regarding cumulative effect.
V. DEFENDANT IN RESTRAINTS
Next, defendant argues that she was denied his right to an impartial jury because the jury
was allowed to view her in restraints. We disagree.
Because defendant failed to preserve this issue, we review it for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).
Embodied in a defendant’s right to a fair and impartial trial is the right to be free of
restraints in the courtroom, unless they are necessary to prevent escape or injury to other persons.
People v Payne, 285 Mich App 181, 186; 774 NW2d 714 (2009). If a defendant is required to
wear restraints in the courtroom, then the defendant must demonstrate prejudice as a result. Id.
However, “the prohibition against shackling does not extend to safety precautions taken by
officers while transporting a defendant to and from the courtroom.” People v Horn, 279 Mich
App 31, 37; 755 NW2d 212 (2008). “Further, when jurors inadvertently see a defendant in
shackles, there still must be some showing that the defendant was prejudiced.” Id.
The only time defendant’s restraints were mentioned in the record was by defense
counsel during voir dire:
Now, when my one [sic] client came in the court today, she came in here
in the company of deputies. Some of you in the hallway probably saw that she
was handcuffed and shackled. She’s charged with assault with intent to kill. It’s
a capital offense. Does anybody think she’d be out on bond on her merry way?
Anybody at all? There’s very, very high bonds in cases like this because they are
very, very serious. That means you are not walking around on the street. And,
typically, you are not suppose to see my client in handcuffs but I realize some of
you did and that’s why I’m bringing it up now.
Anybody sitting on this panel, does anybody believe that they are going to
prejudiced one way or another knowing that she is in jail right now on this
charge? Anybody at all?
Does anybody think she’s guilty because she can’t make bond in this case?
Anybody at all?
The members of the jury panel did not answer defense counsel or say anything.
The above record evidence does not demonstrate that the potential jurors ever saw
defendant in restraints. Defense counsel stated that because defendant came to court in
handcuffs and shackles the potential jurors “probably” saw that, but nothing indicated that they
actually did. Defendant did not seek a curative instruction or seek a mistrial. In fact, the issue
was never formally raised to the trial court.
Even if the potential jurors saw defendant in handcuffs and shackles, the sighting would
have occurred while defendant was being transported to court. As noted, “the prohibition against
shackling does not extend to safety precautions taken by officers while transporting a defendant
to and from the courtroom.” Horn, 279 Mich App at 37.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant argues that defense counsel was ineffective for failing to object to (1) the
repeated admission of irrelevant evidence, (2) the prosecutor’s misconduct, and (3) the jury
having saw defendant in shackles. We disagree.
This Court denied defendant’s request for a remand for an evidentiary hearing. Because
an evidentiary hearing was not held, our “review is limited to errors apparent on the record.”
People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). “The denial of effective
assistance of counsel is a mixed question of fact and constitutional law, which are reviewed,
respectively, for clear error and de novo.” People v Brown, 279 Mich App 116, 140; 755 NW2d
To prove defendant received ineffective assistance of counsel, she must show: (1) “that
counsel’s performance was deficient in that it fell below an objective standard of professional
reasonableness,” and (2) that there is a reasonable probability the outcome of the trial would
have been different but for counsel’s performance. Jordan, 275 Mich App at 667. Counsel is
presumed to have rendered effective assistance, and the burden is on defendant to prove
otherwise. People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002). An appellate court
should neither “substitute [its] judgment for that of counsel on matters of trial strategy, nor . . .
use the benefit of hindsight when assessing counsel’s competence.” Unger, 278 Mich App at
242-243. Further, there is a strong presumption that counsel’s performance was reasonable trial
strategy and defense counsel is given broad discretion when it comes to trial strategy. People v
Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007); Jordan, 275 Mich App at 667-668.
“Declining to raise objections can often be consistent with sound trial strategy.” Unger, 278
Mich App at 253.
First, defendant argues that defense counsel was ineffective for failing to object to the
admission of irrelevant evidence and the instances of prosecutorial misconduct. However, there
was no basis for defense counsel to object because, as stated above, the evidence was relevant
and there was no prosecutorial misconduct. Thus, defense counsel cannot be deemed ineffective
for failing to make a meritless objection. People v Ericksen, 288 Mich App 192, 201; 793 NW2d
120 (2010). Further, the mere failure to make an objection does not render defense counsel’s
performance deficient. It is possible defense counsel refrained from objecting in order to avoid
drawing attention to every piece of evidence that might not have carried as much value. This
would have been a reasonable choice to make.
Second, defendant argues that defense counsel was ineffective for allowing potential
jurors to see defendant in shackles. However, as discussed above, there is no record evidence
that the potential jurors even saw defendant in shackles. Even if the potential jurors did see
defendant come to court in shackles, “the prohibition against shackling does not extend to safety
precautions taken by officers while transporting a defendant to and from the courtroom.” Horn,
279 Mich App at 37. Thus, it would be a reasonable choice for defense counsel to raise the issue
during voir dire, as he did.
Defendant also argues that the cumulative effect of defense counsel’s errors warrants
relief. However, “only actual errors are aggregated to determine their cumulative effect.”
People v Bahoda, 448 Mich 261, 292 n 64; 531 NW2d 659 (1995). There were no errors based
on defense counsel’s representation; therefore, there is no cumulative effect that would warrant
VII. OFFENSE VARIABLES 5 AND 12
Lastly, defendant argues that the trial court incorrectly scored Offense Variable (OV) 5
and OV 12. We disagree.
We review de novo a trial court’s scoring of offense variables using the statutory
sentencing guidelines. People v Waclawski, 286 Mich App 634, 680; 780 NW2d 321 (2009).
We also review de novo issues of statutory interpretation. People v Breidenbach, 489 Mich 1, 6;
798 NW2d 738 (2011).
The trial court has discretion to score offense variables as long as the evidence on the
record adequately supports the score. People v Waclawski, 286 Mich App 634, 680; 780 NW2d
321 (2009). Therefore, “this Court reviews the scoring to determine whether the sentencing
court properly exercised its discretion and whether the evidence adequately supported a
particular score.” Id. “Scoring decisions for which there is any evidence in support will be
upheld.” People v Endres (On Remand), 269 Mich App 414, 417; 711 NW2d 398 (2006).
“When the defendant’s sentence is based on an error in scoring or based on inaccurate
information, a remand for resentencing is required.” People v Jackson, 487 Mich 783, 792; 790
NW2d 783 (2010) (emphasis in original).
The trial court is to score defendant for OV 5 if the crime committed was assault with
intent to commit murder. MCL 777.22(1). Fifteen points for OV 5 may be assessed if “[s]erious
psychological injury requiring professional treatment occurred to a victim’s family.” MCL
777.35(1). The statute also states, “Score 15 points if the serious psychological injury to the
victim’s family may require professional treatment. In making this determination, the fact that
treatment has not been sought is not conclusive.” MCL 777.35(2) (emphasis added).
There was record evidence that the victim’s daughter suffered serious psychological
injury as a result of the attack on the victim. The victim testified that his daughter’s grades
dropped and she became more angry and short-tempered. He also stated that she had difficulty
expressing herself. The victim also stated that the blood on the door affected his daughter, and
that she was traumatized by the incident. Lastly, he indicated that she was very concerned about
being home alone and was overly cautious entering and exiting the residence. Thus, the trial
court did not err by scoring OV 5 at 15 points. Waclawski, 286 Mich App at 680.
The trial court may score defendant 25 points for OV 12 if “[t]hree or more
contemporaneous felonious criminal acts involving crimes against a person were committed.”
MCL 777.42(1)(c). MCL 777.42(2)(a) provides:
A felonious criminal act is contemporaneous if both of the following
(i) The act occurred within 24 hours of the sentencing offense.
(ii) The act has not and will not result in a separate conviction.
“[T]he Legislature did not intend for contemporaneous felonious criminal acts to be the same
acts that established the sentencing offense.” People v Light, 290 Mich App 717, 723; 803
NW2d 720 (2010). “Therefore, when scoring OV 12, a court must look beyond the sentencing
offense and consider only those separate acts or behavior that did not establish the sentencing
The trial court determined that “[e]ach and every one of the six shots that were aimed at
the victim was, in fact, separate assault with intent to murder and each should be scored.” We
cannot conclude that the trial court erred in scoring OV 12. The evidence indicates that the
victim was shot at six times. Each time defendant pulled the trigger was a separate act, and only
one was needed to convict her. Thus, the other five acts of pulling the trigger would be
contemporaneous felonious criminal act, because defendant’s actions would not result in separate
convictions and the acts occurred within 24 hours of the sentencing offense. See People v
Wakeford, 418 Mich 95, 111-112; 341 NW2d 68 (1983) (indicating that here defendant’s action
would only support one conviction of assault with intent to murder because only one person was
/s/ Cynthia Diane Stephens
/s/ Donald S. Owens
/s/ Christopher M. Murray