PEOPLE OF MI V ROY BLACKMONAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
August 19, 2008
Wayne Circuit Court
LC No. 98-005154
Advance Sheets Version
Before: Markey, P.J., and White and Wilder, JJ.
This case is before us on remand from the Michigan Supreme Court. People v Blackmon,
477 Mich 1125 (2007). This Court is instructed to decide
(1) whether the error that occurred [at defendant’s trial] is constitutional in nature;
(2) whether the Court of Appeals, on direct appeal, therefore erred in failing to
apply the “harmless beyond a reasonable doubt” standard that is applied to
preserved federal constitutional error, Chapman v California, 386 US 18; 87 S Ct
824; 17 L Ed 2d 705 (1967) [overruled in part on other grounds, as recognized in
Sherley v Kentucky, 889 SW2d 794 (Ky, 1994)]; (3) if so, whether the errors
committed at trial were harmless beyond a reasonable doubt; (4) whether
defendant has shown good cause for failing to raise these issues on direct appeal;
and (5) if so, whether defendant has shown actual prejudice and is therefore
entitled to postappeal relief under MCR 6.508(D)(3). [Id.]
We conclude that the claimed errors at defendant’s trial were nonconstitutional in nature.
In April 1998, in the area of 14748 Woodmont Street in the city of Detroit, defendant
shot to death one person (the murder victim, Kenneth Tinsley), and shot two other persons, who
survived (Michael Hearn, who was shot twice, and Tiffiney Smith, a nine-year-old girl who was
riding her bicycle at the time of the assaults).1 All three victims were innocent bystanders.
Both of the assault victims must live the rest of their lives with bullets in their bodies.
Defendant was 21 when he committed these felonies. The medical examiner, who autopsied
Tinsley, found that Tinsley died from a single gunshot to his chest. The prosecutor charged
defendant with first-degree premeditated murder,2 two counts of assault with intent to murder
(AWIM), and one count of possession of a firearm during the commission of a felony.3
The prosecution argued that the crimes were gang-related, and presented evidence that
defendant was a member of the Schoolcraft Boys, a gang. Defendant denied that he was the
shooter, presenting an alibi that he was at home at the time of the murder.
The prosecution argued that defendant’s crimes were committed because he was coming
to the aid of fellow gang member, Jimmy Crost. Crost had visited Keynyatta Simons’s
girlfriend, Nancy Ellis, who testified that Simons threatened to harm Crost, and that Crost made
a telephone call asking to be picked up because of some trouble. Hearn testified that defendant
arrived, spoke to Crost, and then fired several shots, two of which hit Hearn as he stood near
At trial, two eyewitnesses (Hearn and Arthur Anderson) testified that they saw defendant
commit the crimes. This testimony tended to establish the identity of the murderer. Although
the credibility of their testimony was challenged through impeachment, a jury of defendant’s
peers found him guilty of murder and the other charges. The trial court sentenced defendant to
40 to 60 years’ imprisonment for the second-degree murder conviction, three to ten years’
imprisonment for each assault conviction, and two years’ imprisonment for the felony-firearm
Defendant appealed. This Court determined that, in light of the other testimony
indicating that defendant was the murderer, the trial court abused its discretion in admitting the
testimony about defendant’s gang membership, because the unfairly prejudicial nature of the
testimony substantially outweighed any probative value (even though it supported the
prosecution’s theory). People v Blackmon, unpublished opinion per curiam, issued September
14, 2001 (Docket No. 219350). This Court rejected the argument that the evidence concerning
gang membership was relevant to show witness intimidation5 and motive.
This Court also concluded that presentation of the testimony indicating defendant’s
membership in the Schoolcraft gang was prosecutorial misconduct. Notwithstanding its
conclusions that the admission of gang-membership evidence and argument concerning that
evidence was erroneous and prosecutorial misconduct, this Court concluded that the errors,
Later, the first count was amended to second-degree murder.
The first three counts were also leveled against a codefendant, Jimmy Crost, a fellow gang
member of defendant.
This evidence suggests that defendant may have intended to shoot and murder Simons (for
threatening to harm Crost), but instead hit the victims.
It is undisputed that several witnesses were reluctant to testify against defendant.
which it called nonconstitutional, were harmless because the untainted evidence of defendant’s
guilt was overwhelming. Therefore, this Court affirmed the convictions and sentences.
Defendant filed an application for leave to appeal in the Supreme Court, arguing that this
Court, after finding prosecutorial misconduct and evidentiary error, should have reversed the
convictions. The Supreme Court denied leave to appeal. 467 Mich 851 (2002).
Defendant sought habeas corpus relief in federal district court, arguing that the failure to
reverse the convictions infringed federal constitutional rights. The federal district court agreed,
concluding that the erroneous admission of gang-membership evidence, as well as the related
prosecutorial misconduct, resulted in an unfair trial and a deprivation of the defendant’s liberty
without due process of law. The federal court concluded that the untainted evidence of
defendant’s guilt was underwhelming, and held that defendant was entitled to be tried anew or
released. Blackmon v Booker, 312 F Supp 2d 874 (ED Mich, 2004).
The United States Court of Appeals for the Sixth Circuit reversed the district court,
determining that defendant failed to present his federal constitutional claims to the state courts.
Blackmon v Booker, 394 F3d 399, 400-401 (CA 6, 2004). On remand, the federal district court
instructed defendant to exhaust his state-court remedies for the alleged federal-law violations.
In the circuit court, defendant filed a motion for relief from the judgment of conviction,
presenting his federal claims that he was deprived of liberty without due process of law, and
arguing that the trial court’s errors were constitutional in nature. The trial court denied the
motion. This Court denied defendant’s application for leave to appeal. People v Blackmon,
unpublished order of the Court of Appeals, entered September 15, 2006 (Docket No. 268628).
The Supreme Court, in lieu of granting defendant’s application for leave to appeal,
remanded the case to this Court. People v Blackmon, 477 Mich 1066 (2007), vacated 477 Mich
1125 (2007). The prosecutor filed a motion for reconsideration or clarification of the Supreme
Court’s order, which the Supreme Court granted, vacating its earlier order and once again
remanding the case to this Court for consideration as on leave granted. 477 Mich 1125 (2007).
We now again affirm.
The first issue concerns whether the errors that occurred at defendant’s trial were
constitutional in nature. Defendant argues that some of the errors were constitutional. We
Whether an error is constitutional in nature is an issue of law. We review issues of law
de novo. People v Kaslowski, 239 Mich App 320, 323; 608 NW2d 539 (2000).
On direct appeal, this Court held that the following two errors occurred at trial: (1)
erroneous admission of gang-affiliation testimony and (2) prosecutorial misconduct. Evidentiary
errors are nonconstitutional. People v Herndon, 246 Mich App 371, 402 n 71; 633 NW2d 376
(2001). The key issue is whether prosecutorial misconduct is constitutional error. We hold that,
in this case, it is not.
Some domestic decisions hold that prosecutorial misconduct is nonconstitutional error,
even where the defendant alleges that the misconduct deprived the defendant of a fair trial and
resulted in a deprivation of the defendant’s liberty without due process of law, see People v
Jones, 468 Mich 345, 354; 662 NW2d 376 (2003) (improper questioning by the prosecutor is
nonconstitutional error); People v Mezy, 453 Mich 269, 285-286; 551 NW2d 389 (1996)
(plurality opinion of Weaver, J.) (applying the nonconstitutional harmless-error standard to
review a claim of prosecutorial misconduct), while others hold that it constitutes constitutional
error, People v Abraham, 256 Mich App 265, 272, 276; 662 NW2d 836 (2003) (“[g]enerally, a
claim of prosecutorial misconduct is a constitutional issue”), citing People v Pfaffle, 246 Mich
App 282, 288; 632 NW2d 162 (2001); but cf. People v Taylor, 159 Mich App 468, 471; 406
NW2d 859 (1987) (holding that prosecutorial noncompliance with a discovery order is an error
of nonconstitutional magnitude). Thus, domestic decisions do not settle this question. We must
look to decisions from federal courts and the courts of other states.
Here, the prosecutorial misconduct consisted of (1) improper elicitation of gangaffiliation testimony, (2) improper argument to the jury concerning defendant’s alleged gang
affiliation, (3) improper impeachment by the prosecution of one of its own witnesses, Tiffany
Goggans, and (4) improperly questioning defendant about the credibility of witnesses.
Regarding the first two type of prosecutorial misconduct, defendant cites no authority suggesting
that improper elicitation of gang-affiliation testimony, or improper argument to the jury
concerning gang affiliation, is an error of constitutional magnitude. Neither do we find any such
authority. Therefore, we reject defendant’s argument.
Regarding the second two types of prosecutorial misconduct that the earlier panel of this
Court found to have occurred, we conclude that these relate only to evidentiary matters. And
evidentiary errors are nonconstitutional. Herndon, supra at 402 n 71. Therefore, we reject
defendant’s argument that the second two types of prosecutorial misconduct that occurred at trial
were errors of a constitutional nature.
We find no authority for a general constitutional right to exclude gang-affiliation
evidence. And none of the errors implicated a specific constitutional right—only the general
right to be free from a deprivation of one’s liberty without due process of law. (The instant case
is not one where the prosecutor violated, for instance, the Fifth Amendment right against selfincrimination by commenting on defendant’s failure to testify, or one where the Sixth
Amendment right to counsel was infringed.) The United States Supreme Court made this key
distinction, between claims that the prosecutor violated a specific, enumerated constitutional
right, and claims of violation of the general due-process right to a fair trial. Donnelly v
DeChristoforo, 416 US 637, 643; 94 S Ct 1868; 40 L Ed 2d 431 (1974). The former types of
rights require that courts take special care to assure that the prosecutor in no way infringes upon
the specific constitutional right. Id. Although any error can potentially be argued to have
deprived a defendant of his due-process fair-trial right, not every trial error is constitutional in
nature. People v Toma, 462 Mich 281, 296; 613 NW2d 694 (2000) (not every trial error violates
due process). Merely framing an issue as constitutional does not make it so. People v
Weathersby, 204 Mich App 98, 113; 514 NW2d 493 (1994).
Defendant cites United States Supreme Court authority treating prosecutorial misconduct
as federal constitutional error. See Chapman v California, 386 US 18, 19, 20, 25-26; 87 S Ct
824; 17 L Ed 2d 705 (1967) (the prosecutor’s comments violated the defendant’s Fifth
Amendment right against self-incrimination)6 overruled in part on other grounds, as recognized
in Sherley v Kentucky, 889 SW2d 794 (Ky, 1994). But neither Chapman nor the other decisions
cited by defendant definitively settles the question at issue here, because none of them stands for
the proposition that any prosecutorial misconduct, by itself, is constitutional error. Once again,
in Chapman, there was a specific constitutional right infringed, not the general constitutional
right of due process. Accordingly, we conclude that the errors at issue here to be
nonconstitutional. Toma, supra at 296 (not every trial error violates due process). There is
simply no general federal constitutional right to exclusion of gang-membership evidence.
In any event, defendant failed to preserve the errors as constitutional. Although
defendant argued in his appellate brief on direct appeal that the prosecutorial misconduct
violated his federal and state constitutional due-process rights to a fair trial, his reply brief
expressly characterized the errors as nonconstitutional. Thus, defendant waived his argument
that this Court should have treated the errors as constitutional. See People v Williams, 475 Mich
245, 261, 716 NW2d 208 (2006).
Even if defendant had not waived his argument that the errors were constitutional in
nature, we would conclude that they were not constitutional. Where there is no allegation that
prosecutorial misconduct violated a specific constitutional right, a court must determine whether
the error so infected the trial with unfairness as to make the resulting conviction a denial of due
process of law. Donnelly, supra at 643.
In Donnelly, a jury of DeChristoforo’s peers found him guilty of first-degree murder.
DeChristoforo appealed to the Massachusetts Supreme Judicial Court, arguing, among other
things, that certain remarks by the prosecutor during closing argument deprived him of his
federal constitutional right to a fair trial. Donnelly, supra at 638. That court affirmed. It
acknowledged that the prosecutor had made improper remarks, but determined that they were not
so prejudicial as to require reversal. Id. DeChristoforo then sought habeas relief in federal
district court, which denied relief, concluding that the prosecutor’s arguments were not so
prejudicial as to deprive DeChristoforo of his right to a fair trial. The United States Court of
Appeals for the First Circuit reversed. “The majority held that the prosecutor’s remarks
deliberately conveyed the false impression that respondent had unsuccessfully sought to plead to
It is not clear whether Chapman still would have held that the error was constitutional, absent
the involvement of the Fifth Amendment right against self-incrimination. Defendant also cites
Darden v Wainwright, 477 US 168; 106 S Ct 2464; 91 L Ed 2d 144 (1986) (in evaluating a
prosecutorial-misconduct claim, the Court asked whether the conduct so infected the trial with
unfairness as to make the resulting conviction a denial of due process; the Court did not indicate
whether error was constitutional); Donnelly, supra at 640-645 (observing that the respondent’s
“claims of constitutional error” focused on remarks made by the prosecutor and holding that the
errors did not render the respondent’s trial so fundamentally unfair as to deny him due process);
Berger v United States, 295 US 78; 55 S Ct 629; 79 L Ed 2d 1314 (1935) (holding that a new
trial was warranted where prejudice stemming from prosecutorial misconduct was highly
probable; Court did not indicate whether error was constitutional). But none of these decisions
holds that prosecutorial misconduct is always constitutional error.
a lesser charge and that this conduct was a denial of due process.” Id. at 639. The United States
Supreme Court reversed the Court of Appeals, holding that the prosecutor’s remarks, considered
in the context of the entire trial, were not so prejudicial as to violate DeChristoforo’s federal dueprocess rights. Id.
Donnelly does not state an explicit rule for determining when prosecutorial misconduct
constitutes constitutional error, and when it constitutes nonconstitutional error. But the Court did
This is not a case in which the State has denied a defendant the benefit of a
specific provision of the Bill of Rights, such as the right to counsel, Argersinger
v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), or in which the
prosecutor’s remarks so prejudiced a specific right, such as the privilege against
compulsory self-incrimination, as to amount to a denial of that right. Griffin v.
California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). When specific
guarantees of the Bill of Rights are involved, this Court has taken special care to
assure that prosecutorial conduct in no way impermissibly infringes them. But
here the claim is only that a prosecutor’s remark about respondent’s expectations
at trial by itself so infected the trial with unfairness as to make the resulting
conviction a denial of due process. [Donnelly, supra at 643 (emphasis added).]
In Darden v Wainwright, 477 US 168; 106 S Ct 2464; 91 L Ed 2d 144 (1986), Darden
was found guilty by a jury of his peers in Florida state court of murder and other crimes. Under
Florida’s capital-sentencing statute, the same jury heard further testimony and argument, and
made a nonbinding recommendation that the death penalty be imposed. The trial judge followed
that recommendation, and the Florida Supreme Court affirmed the conviction and the sentence,
rejecting petitioner’s contention that the prosecution’s closing argument during the guilt phase of
the trial rendered the trial fundamentally unfair and deprived the sentencing determination of the
reliability required by the Eighth Amendment. “The prosecution’s argument included improper
remarks that indicated that petitioner was on weekend furlough from an earlier prison sentence
when the crime involved here occurred; implied that the death penalty would be the only
guarantee against a future similar act; referred to petitioner as an ‘animal’; and reflected an
emotional reaction to the case.” Id. at 169.
Darden sought habeas relief in federal district court, raising the same claim (and one
other not relevant here). The district court denied relief, and the Court of Appeals for the
Eleventh Circuit ultimately affirmed. Before the United States Supreme Court, Darden argued
“that the prosecution’s closing argument at the guilt-innocence stage of the trial rendered his
conviction fundamentally unfair and deprived the sentencing determination of the reliability that
the Eighth Amendment requires.” Darden, supra at 178-179. The Court sought to place the
prosecutor’s remarks in context:
It is helpful as an initial matter to place these remarks in context. Closing
argument came at the end of several days of trial. Because of a state procedural
rule petitioner’s counsel had the opportunity to present the initial summation as
well as a rebuttal to the prosecutors’ closing arguments. The prosecutors'
comments must be evaluated in light of the defense argument that preceded it,
which blamed the Polk County Sheriff’s Office for a lack of evidence, alluded to
the death penalty, characterized the perpetrator of the crimes as an “animal,” and
contained counsel’s personal opinion of the strength of the State’s evidence.
[Darden, supra at 179.]
Next, Darden stated:
The prosecutors then made their closing argument. That argument
deserves the condemnation it has received from every court to review it, although
no court has held that the argument rendered the trial unfair. Several comments
attempted to place some of the blame for the crime on the Division of
Corrections, because Darden was on weekend furlough from a prison sentence
when the crime occurred. Some comments implied that the death penalty would
be the only guarantee against a future similar act. Others incorporated the
defense’s use of the word “animal.” Prosecutor McDaniel made several offensive
comments reflecting an emotional reaction to the case. These comments
undoubtedly were improper. But as both the District Court and the original panel
of the Court of Appeals (whose opinion on this issue still stands) recognized, it “is
not enough that the prosecutors’ remarks were undesirable or even universally
condemned.” Darden v. Wainwright, 699 F.2d. at 1036. The relevant question is
whether the prosecutors’ comments “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.”
DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Moreover,
the appropriate standard of review for such a claim on writ of habeas corpus is
“the narrow one of due process, and not the broad exercise of supervisory
power.” Id., at 642, 94 S.Ct., at 1871. [Darden, supra at 179-181 (emphasis
The United States Supreme Court affirmed, holding that the prosecutor’s improper closing
argument did not deprive defendant of his federal right to a fair trial. Thus, although Darden
does not expressly make the distinction between prosecutorial misconduct that constitutes
constitutional error and misconduct that constitutes nonconstitutional error, it can be read to
provide that the former requires that the prosecutor’s remarks so infected the trial with unfairness
as to make the resulting conviction a deprivation of liberty without due process of law. Id.
In Burton v Renico, 391 F3d 764, 780-781 (CA 6, 2004), Burton had been convicted of
first-degree murder in a Michigan state court and his conviction was affirmed by this Court.
Burton petitioned for habeas relief in federal district court. The district court denied relief. The
United States Court of Appeals for the Sixth Circuit affirmed, holding that this Court’s denial of
Burton’s claim that his Sixth Amendment rights were violated by the trial court’s failure to grant
his request for a continuance did not warrant habeas relief. The court stated standards for
determining whether prosecutorial misconduct causes a deprivation of liberty without due
process of law:
Burton’s fifth procedurally defaulted claim is that the prosecutor engaged
in misconduct by making statements undermining Burton’s presumption of
innocence. Prosecutorial misconduct, in order to rise to the level of a
constitutional due process violation, must be so severe that the defendant did not
have a fair trial. As we explained in Bowling v. Parker, for prosecutorial
misconduct to rise to the level of a constitutional violation cognizable on habeas
the misconduct must have so infected the trial with unfairness as to make
the resulting conviction a denial of due process. Even if the prosecutor’s conduct
was improper or even universally condemned, we can provide relief only if the
statements were so flagrant as to render the entire trial fundamentally unfair.
Once we find that a statement is improper, four factors are considered in
determining whether the impropriety is flagrant: (1) the likelihood that the
remarks would mislead the jury or prejudice the accused, (2) whether the remarks
were isolated or extensive, (3) whether the remarks were deliberately or
accidentally presented to the jury, and (4) whether other evidence against the
defendant was substantial. 344 F.3d 487, 512-13 (6th Cir. 2003) (internal
quotation marks and citations omitted). [Burton, supra at 780-781 (emphasis
Thus, in order to constitute or cause a deprivation of liberty without due process under the
federal constitution, the prosecutorial misconduct must be “so flagrant as to render the entire trial
fundamentally unfair.” Burton, supra at 780-781.
In Marshall v Hendricks, 307 F3d 36 (CA 3, 2002), Marshall was convicted in a New
Jersey state court of hiring someone to murder his wife and was sentenced to death. After
exhausting state-court appeals, he petitioned for habeas corpus relief in federal district court,
asserting, among other claims, prosecutorial misconduct. The federal district court denied relief.
The United States Court of Appeals for the Third Circuit held, in relevant part, that the
prosecution’s repeated, deliberate misconduct did not render the trial unfair; that the
prosecutorial misconduct constituted harmless error; and that prosecutorial misconduct did not
violate Marshall’s right to call witnesses. The court stated:
Marshall urges that the New Jersey Supreme Court misapplied the United
States Supreme Court’s precedent in Berger v. United States, 295 U.S. 78, 55
S.Ct. 629, 79 L.Ed. 1314 (1935), by determining either that “no error” occurred,
or that any error that did occur was harmless. App. Br. at 134. In Berger, the
United States Supreme Court condemned the prosecutor's argument as
“undignified and intemperate, containing improper insinuations and assertions
calculated to mislead the jury.” Id. at 85, 55 S.Ct. 629. The Court then
enunciated the often-cited standard by which prosecutors must abide:
The United States Attorney is the representative not of an ordinary party to
a controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done.
As such, he is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor-indeed, he should do so. But, while he may
strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to
refrain from improper methods calculated to produce a wrongful conviction as it
is to use every legitimate means to bring about a just one. Id. at 88, 55 S.Ct. 629.
But improper conduct is not, in itself, sufficient to constitute constitutional
error, even when—as here—that conduct is alleged to be both deliberate and
pervasive. Improper conduct only becomes constitutional error when the impact
of the misconduct is to distract the trier of fact and thus raise doubts as to the
fairness of the trial.16
We note that we only conduct a harmless error inquiry once we decide
that constitutional error did occur. Thus, we first examine whether the misconduct
so infected the trial as to render it unfair. See, e.g., Darden v. Wainwright, 477
U.S. 168, 182 n. 15, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
[Marshall, supra at 67 (emphasis added).]
State courts have also acknowledged that, to be constitutional error, prosecutorial
misconduct must so infect the trial with unfairness as to render the trial a deprivation of liberty
without due process of law. People v Ledesma, 39 Cal 4th 641, 680; 140 P3d 657; 47 Cal Rptr3d
326 (2006). Ledesma states:
A prosecutor’s conduct violates the Constitution only when it is so
egregious that it infects the trial with such unfairness as to make the conviction a
denial of due process. . . . Conduct that does not rise to the level of a
constitutional violation will constitute prosecutorial misconduct under state law
only if it involves the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury. [Id. at 680-681 (internal quotation marks
and citations omitted; emphasis added).]
See also People v Jablonski, 37 Cal 4th 774, 835; 126 P3d 938; 38 Cal Rptr 3d 98 (2006).
Accordingly, in order for prosecutorial misconduct to be constitutional error, the
misconduct must have so infected the trial with unfairness as to make the conviction a
deprivation of liberty without due process of law. Donnelly, supra at 643 (emphasis added). We
conclude that none of the prosecutorial misconduct in this case infected the trial with such
unfairness as to make the conviction a denial of due process. All of the prosecutorial
misconduct, with the exception of the misconduct consisting of improper argument to the jury
concerning defendant’s alleged gang affiliation, related to admission of evidence, and such
evidentiary errors were supported by specific evidentiary rulings by the trial court.7 Although
We agree with the prosecutor that “[t]here is nothing improper about a prosecutor’s reliance on
we are bound by the prior panel’s conclusion that there was prosecutorial misconduct, we
conclude that the evidentiary misconduct did not so infect the trial with unfairness as to deprive
defendant of due process.
We also conclude that the misconduct consisting of improper argument to the jury did not
so infect the trial with unfairness as to render the conviction a denial of due process. There was
evidence that defendant was a member of the Schoolcraft gang and that these crimes (shooting of
innocent bystanders) were committed because defendant was coming to the aid of fellow gang
member Crost. Crost had visited Keynyatta Simons’s girlfriend, Nancy Ellis, who testified that
Simons threatened to harm Crost, and that Crost made a telephone call asking to be picked up
because of some trouble. Hearn testified that defendant arrived, spoke to Crost, and then fired
several shots, two of which hit Hearn as he stood near Simons. This evidence suggests (and the
jury evidently concluded) that defendant intended to shoot and murder Simons (for threatening to
harm Crost), but instead hit the victims. Thus, there was evidence that defendant’s crimes were
gang-motivated, or at least gang-related. Accordingly, the prosecution’s misconduct, consisting
of improper argument to the jury regarding defendant’s gang affiliation, did not rise to the level
of a constitutional violation, because it did not so infect the trial with unfairness as to render the
conviction a deprivation of liberty without due process of law.
Accordingly, this Court on direct appeal applied the proper standard of review—the
preserved, nonconstitutional error standard. Under the preserved, nonconstitutional error
standard, a defendant has the burden of establishing that it is more probable than not that the
error in question “undermine[d] the reliability of the verdict,” thereby making the error “outcome
determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).
Because the prosecutorial misconduct was nonconstitutional in nature, this Court was not
required to apply the “harmless beyond a reasonable doubt” standard on direct appeal.
Accordingly, this issue, which the Supreme Court directed us to consider, is moot. The Healing
Place at North Oakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 61; 744 NW2d 174
Next, defendant argues that he has shown good cause and actual prejudice under MCR
6.508(D)(3) for relief from the judgment. Because we find that there was no constitutional error,
we reject defendant’s arguments in this regard.
The prosecutorial misconduct that occurred in defendant’s trial was nonconstitutional
error. On direct appeal, this Court did not err in failing to apply the “harmless beyond a
reasonable doubt” standard that is applied to preserved federal constitutional error.
a state court’s evidentiary ruling, whether or not the ruling itself was correct.” Frazier v
Huffman, 343 F3d 780, 792 (CA 6, 2003) (emphasis added).
Markey, P.J., concurred.
/s/ Kurtis T. Wilder
/s/ Jane E. Markey