PEOPLE OF MI V ALFRED PATRICK GRABDAAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 20, 1998
Grand Traverse Circuit Court
LC No. 95-006938 FH
ALFRED PATRICK GRABDA,
Before: Wahls, P.J., and Holbrook, Jr., and Fitzgerald, JJ.
Defendant appeals as of right from his jury trial conviction of uttering and publishing, MCL
750.249; MSA 28.446. Defendant was sentenced as a habitual offender, fourth offense, MCL 769.12;
MSA 28.1084, to a term of ten to twenty years’ imprisonment. We affirm.
In November 1995, a briefcase was taken from a van being driven by John Walker as the van
was parked outside of a gas station and convenience store. Inside of the briefcase was Walker’s
personal checkbook. Later that same day, a check drawn on the Walker account was cashed at the
Fife Lake branch of the Forest Area Credit Union. Defendant was subsequently arrested and charged
with one count of uttering and publishing, MCL 750.249; MSA 28.446.
I. SUFFICENY OF THE EVIDENCE
Defendant argues that the trial court erred in denying his motion for a new trial, maintaining that
the verdict was not supported by sufficient evidence. Defendant argues that the sole evidence
connecting him to the crime was the positive identification offered at trial by the head teller at the Fife
Lake branch of the Forest Area Credit Union. Defendant argues that this identification was suspect
because in a pretrial lineup the teller had identified another man (defendant’s brother) as having been the
person who cashed the stolen check.
“When reviewing a challenge to the sufficiency of the evidence, this Court views the evidence in
a light most favorable to the prosecution to determine if a rational trier of fact could have found that the
elements of the crime were proven beyond a reasonable doubt.” People v Dukes, 189 Mich App 262,
264-265; 471 NW2d 651 (1991). “Circumstantial evidence and reasonable inferences drawn
therefrom may be sufficient to prove the elements of a crime.” People v Jolly, 442 Mich 458, 466;
502 NW2d 177 (1993).
After reviewing the totality of the evidence in the record, we conclude that there was sufficient
evidence to convict defendant. We first note that, contrary to defendant’s contention, the in-court
identification of defendant by the head teller was not the sole evidence linking defendant to this crime.
For example, there was evidence placing defendant’s car at the gas station/convenience store at the time
when the checks were stolen. Further, the detective investigating the burglary testified that when he
questioned defendant about the stolen checks, defendant responded “that he had not broken into any
van.” This response came before anyone involved in the investigation had mentioned to defendant that
the checks had been stolen from a van.
As for the head teller’s identification, when identifying defendant at trial as the man that cashed
the forged check, she recalled specific details, including that he was wearing a cap, a jacket, and had a
mustache. The record also shows that before defendant’s arrest, she had identified defendant in a
photographic lineup of suspects. She also identified him at his preliminary examination. The fact that the
teller initially misidentified defendant's brother as the man who passed the forged check in a corporeal
lineup is not dispositive. As we just observed, defendant’s conviction did not rest solely on the teller’s
identification evidence. Further, the teller testified that when she identified defendant in a second
corporeal lineup, she was more confident with that choice.
Defendant also raises in his question presented on this issue the question of whether the verdict
was against the great weight of the evidence. Because defendant does not discuss this question in his
brief on appeal, we consider it to have been abandoned. People v Anderson, 209 Mich App 527,
538; 531 NW2d 780 (1995).
II. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecution improperly shifted the burden of proof to him when it
stated in its closing arguments that defendant had failed to provide credible evidence of his alibi. We
disagree. “Generally, ‘[p]rosecutors are accorded great latitude regarding their arguments and
conduct.’” People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995), quoting People v Rohn,
98 Mich App 593, 596; 296 NW2d 315 (1980). However, “a prosecutor may not suggest in closing
argument that defendant must prove something or present a reasonable explanation for damaging
evidence as this argument tends to shift the burden of proof.” People v Foster, 175 Mich App 311,
317; 437 NW2d 395 (1989), disapproved on other grounds, People v Fields, 450 Mich 94, 115, n
24; 538 NW2d 356 (1995).
In Fields, the Michigan Supreme Court observed that “where a defendant testifies at trial or
advances . . . an alternate theory of the case that, if true, would exonerate the defendant, comment on
the validity of the alternate theory cannot be said to shift the burden of [proof] . . . . Thus, . . . the
prosecutor may comment on the weakness of defendant’s alibi.” Fields, supra at 115. We believe
that the argument cited by defendant as improper was actually legitimate commentary on the weakness
of defendant’s alibi defense. Therefore, reversal on this ground is unwarranted.
III. NARRATION OF VIDEOTAPE
Defendant argues that commentary offered by a police officer at trial during the playing of the
credit union surveillance videotape was hearsay, and thus should not have been admitted into evidence.
Because defendant failed to raise an objection at trial to the comments at issue, appellate review is
precluded “unless the error could have been decisive of the outcome or unless it falls under the category
of cases, yet to be clearly defined, where prejudice is presumed or reversal automatic.” People v
Lane, 453 Mich 132, 140; 551 NW2d 382 (1996). Accord People v Grant, 445 Mich 535, 553;
520 NW2d 123 (1994).
The erroneous admission into evidence of the challenged commentary does not fall into the
category of errors where prejudice is presumed. Accordingly, our analysis need only focus on whether
the alleged error was outcome determinative. We are convinced after reviewing the record that the
challenged commentary was not decisive of the outcome. As previously discussed, the evidence
properly admitted at trial was sufficient to convict. One piece of this properly admitted evidence was
the teller’s identification of defendant, which placed him inside the credit union at the time the
surveillance tape was made. Given these circumstances, we decline defendant’s invitation to consider
for the first time on appeal this unpreserved issue. Grant, supra at 553.
IV. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was the denied effective assistance of counsel. To establish ineffective
assistance of counsel, a defendant must first show that trial counsel’s performance was objectively
deficient to an extent “‘that counsel was not functioning as the “counsel” guaranteed . . . by the Sixth
Amendment.’” People v Mitchell, 454 Mich 145, 164-165; 560 NW2d 600 (1997), quoting
Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674. Second, the
defendant must show that the deficient performance prejudiced the defense. Id. at 164. When
attempting to establish prejudice, defendant must show that “there is a reasonable probability that, but
for counsel’s error, the result of the proceeding would have been different.” People v Stanaway, 446
Mich 643, 687-688; 521 NW2d 557 (1994).
A. Motion to Suppress Corporeal Lineup Identification
Defendant first claims that his counsel was ineffective for failing to move to suppress evidence
regarding the bank teller's corporeal lineup identification. At the evidentiary hearing held on defendant’s
motion for a new trial, defense counsel testified that it was defendant’s overwhelming desire to
participate in a corporeal lineup with his brother. Counsel testified that defendant hoped to either
implicate his brother, or at least to raise the spectre of reasonable doubt. Counsel also testified that
after the lineup, defendant agreed that instead of filing a motion to suppress, defendant would “play
upon the confusion in the identification . . . in an effort to show that the Prosecutor had failed” to sustain
his burden of proof. Conversely, defendant testified that it was defense counsel who suggested the
corporeal lineup, and that defendant had agreed to the procedure because he was relying on counsel’s
superior knowledge of the law.
We conclude that defendant has failed to show that counsel’s performance was ineffective on
this matter. Defendant has failed to establish that the lineups were in any way unduly suggestive.
People v McElhaney, 215 Mich App 269, 286: 545 NW2d 18 (1996). Although defendant asserts
that the teller’s lineup identification was inadmissible because the two had been in court together at
defendant’s preliminary examination, defendant fails to show or even argue how that circumstance
tainted the lineup identification. We are not faced with a situation where a prior tentative identification of
defendant was transformed into a later positive identification by the intervening use of suggestive law
enforcement procedures. See People v Gray, 457 Mich 107, 112-113; 577 NW2d 92 (1998). A
claim of ineffective assistance cannot be predicated on the failure to raise a meritless motion to suppress.
People v Darden, 230 Mich App 597, 605; ___ NW2d ___ (1998). Further, defendant has failed to
overcome the presumption that the decision not to bring a motion to suppress was sound trial strategy.
People v LaVearn, 448 Mich 207, 216; 528 NW2d 721 (1995). The fact that counsel’s strategy did
not succeed does not mean that the decision to follow that strategy evidences ineffective assistance.
People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).
B. Teller’s In-Court Identification
Second, defendant claims that his counsel was ineffective for failing to object to the teller’s in
court identification on the grounds that there was no independent basis for the identification. However,
because defendant has failed to show that improper pretrial identification procedures were used, there
was no need to establish an independent basis for the in-court identification. See Gray, supra at 114
115. In any event, after reviewing the record we are convinced that the teller had an independent basis
for her in-court identification. Id. at 116 (listing the eight factors to be used when analyzing whether
there exists “a sufficiently independent basis to identify the defendant in court”).
C. Narration of Videotape
Third, defendant asserts that counsel’s ineffective assistance is evidenced by his failure to object
to the comments made by a police officer during the playing of the credit union’s surveillance videotape.
We disagree. Defendant has failed to establish that he was prejudiced by counsel’s inaction. Mitchell,
supra at 164. Further, given that counsel’s failure to object was a matter of trial strategy, 1 People v
Sharbnow, 174 Mich App 94, 106; 435 NW2d 772 (1989), we will not second-guess that decision.
People v Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987).
D. Prosecutorial Misconduct
Fourth, defendant asserts that counsel’s ineffective assistance was evidenced by his failure to
object to those comments made during closing arguments that defeat claims shifted the burden
of proof. As we have already concluded that the comments were proper, see supra part II, pp 2-3, we
reject the contention that the failure to raise a frivolous objection to those comments was error.
Darden, supra at 605.
V. DEFENDANT’S SENTENCE
Defendant also raises a three prong attack to the sentence imposed by the trial court. “In
reviewing sentences imposed for habitual offenders, the reviewing court must determine whether there
has been an abuse of discretion.” People v Hansford (After Remand), 454 Mich 320, 323-324; 562
NW2d 460 (1997). Under MCL 769.12(1)(a); MSA 28.1084(1)(a), a person convicted of a “felony
. . . punishable upon a first conviction by imprisonment for a maximum term of five years or more or for
life, the court [may be sentenced] . . . upon conviction of the fourth or subsequent offense to
imprisonment for life or for a lesser term.” Uttering and publishing is such a felony. MCL 750.249;
MSA 28.446 (stating that conviction for uttering and publishing is “punishable by imprisonment in the
state prison not more than 14 years”).
First, defendant asserts that his ten to twenty year prison sentence is disproportionate.
Defendant argues that the circumstances surrounding both the offense and the offender do not justify the
harsh sentence imposed. We disagree. The Court in Hansford stated “that a trial court does not abuse
its discretion in giving a sentence within the statutory limits . . . when an habitual offender’s underlying
felony, in context of his previous felonies, evidences that the defendant has an inability to conform his
conduct to the laws of society.” Hansford, supra at 326. In the case at hand, the trial court concluded
that defendant’s criminal history, as well as his own perjury and his involvement in presenting perjurious
testimony of others, evidenced a poor potential for reform. After reviewing the record, we can find no
error in the soundness of this reasoning. Accordingly, we are convinced that the trial court did not
abuse its discretion in sentencing defendant to ten to twenty years in prison.
Second, defendant argues that his sentence amounts to both cruel and unusual punishment, and
cruel or unusual punishment, and is therefore unconstitutional under both the federal2 and state3
constitutions. Again, we disagree. Defendant’s constitutional challenge is based upon his assertion that
the sentence is “grossly excessive.” As we have already concluded that given the circumstances of this
case the trial court did not abuse its discretion when imposing sentence, we further conclude that it does
not violate either constitutional standard. Harmelin v Michigan, 501 US 957, 1001, 1010; 11 S Ct
2680; 115 L Ed 2d 836 (1991) (opinions of Kennedy & White, JJ.); People v Bullock, 440 Mich 15,
37; 485 NW2d 866 (1992).
Finally, defendant argues that the trial court abused its sentencing discretion when it improperly
considered defendant’s refusal to admit guilt and his insistence on a jury trial. After reviewing the
sections of the sentencing hearing cited by defendant, we conclude that his assertion is baseless. In
context, it is clear that the trial court addressed defendant’s refusal to admit his guilt as it bore upon
defendant’s potential for rehabilitation. People v Stewart (On Remand), 219 Mich App 38, 44-45;
555 NW2d 715 (1996). Further, the comments came as the court was discussing defendant’s perjury
and subornation of perjury. These are proper areas to consider when imposing sentence. Id.; People v
Houston, 448 Mich 312, 324; 532 NW2d 508 (1995).
/s/ Myron H. Wahls
/s/ Donald E. Holbrook, Jr.
/s/ E. Thomas Fitzgerald
At the evidentiary hearing, defense counsel claimed that he and defendant discussed the issue and that
they believed the jury had sufficient intelligence to determine that the videotape was of such poor quality,
that the police officer’s references to defendant would be seen as overreaching.
US Const, Am VIII reads: “Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.”
Const 1963, art 1, § 16 reads in pertinent part: “cruel or unusual punishment shall not be inflicted . . .