PEOPLE OF MI V WILLIAM ALBERT BROWN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 29, 1998
Plaintiff-Appellee,
v
No. 201135
Tuscola Circuit Court
LC No. 95-006808 FC
WILLIAM ALBERT BROWN,
Defendant-Appellant.
Before: MacKenzie, P.J., and Bandstra and Markman, JJ.
PER CURIAM.
Defendant appeals as of right from his jury convictions of two counts of first-degree criminal
sexual conduct (CSC I), MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), and two counts of second
degree criminal sexual conduct (CSC II), MCL 750.520c(1)(a); MSA 28.788(3)(1)(a). Defendant’s
convictions were based on testimony from his daughter that he forced her to engage in sexual relations
with him in November 1987 when she was eight years old. Defendant was sentenced to a term of life
imprisonment on the first CSC I conviction, forty to sixty years’ imprisonment on the second CSC I
conviction, and fifteen to thirty years’ imprisonment for each of the CSC II convictions. We affirm.
Defendant first argues that he was denied his constitutional right to a fair trial before an impartial
jury because one juror was an acquaintance of an investigating officer involved in defendant’s case. The
officer had been an occasional customer of the juror’s service station for twenty years, although they
had never socialized beyond that. Whether reversal is required because of jury bias depends on
whether review of defendant's trial, under the totality of the circumstances, reflects that he was denied
his right to a fundamentally fair trial before an impartial jury. People v Delisle, 202 Mich App 658,
669; 509 NW2d 885 (1993). We note that the purpose of voir dire is to allow counsel the opportunity
to elicit information and make a rational determination whether to challenge a juror for cause or exercise
a peremptory challenge. People v Smith (After Remand), 122 Mich App 202, 206-207; 332 NW2d
401 (1981). A defendant is denied his right to a fair trial before an impartial jury when a juror falsely
answers questions or fails to disclose matters that would have led counsel to challenge that juror. Id. In
addition, “jurors are presumed to be competent and impartial and the burden of proving otherwise is
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on” the defendant. People v Badour, 167 Mich App 186, 188; 421 NW2d 624 (1988), rev’d on
other grounds, People v Beckley, 434 Mich 691; 456 NW2d 391 (1990).
First, we note that defendant waived any complaints regarding the relationship between the
complained of juror and investigating officer by failing to either challenge the juror for cause, or to
exercise a peremptory challenge to excuse the juror during voir dire, after the juror fully disclosed his
relationship with the officer. People v Stephens, 58 Mich App 701, 708; 228 NW2d 527 (1975),
People v McKee, 7 Mich App 296, 299; 151 NW2d 869 (1967). Second, notwithstanding this
waiver, we conclude that defendant was not denied his right to a fair trial before an impartial jury. The
juror’s acquaintance with the investigating officer appears far less intimate than a juror’s personal friend
witness, see Badour, supra at 189, or an investigating officer-witness who formerly resided with a
juror’s parents, People v Glover, 83 Mich App 249-250; 268 NW2d 362 (1978), both of whom this
Court found competent. In addition, the juror specifically indicated that he would not give the testimony
of this acquaintance greater weight than any other witness, affirming his impartiality. Glover, supra at
250. Further, the officer in this case never testified. Fourth, defense counsel had two remaining
peremptory challenges when this particular juror was seated, failed to exercise a peremptory challenge
to remove the juror, and failed to challenge the juror for cause. A review of the totality of the
circumstances, Delisle, supra at 669, indicates, in our judgment, that defendant was not denied his right
to a fair trial before an impartial jury. Because “counsel may not harbor error to be used as an appellate
parachute in the event of jury failure,” People v Bart (On Remand), 220 Mich App 1, 15; 558 NW2d
449 (1995), we conclude that defendant waived this issue.
Defendant next argues that he was denied his right to a fair trial because of the prosecutor’s
improper “appeal for sympathy” with the victim. We review allegations of prosecutorial misconduct by
evaluating the prosecutor’s comments in context, People v Paquette, 214 Mich App 336, 342; 543
NW2d 342 (1995), with full reference to defense arguments and the nature of the evidence admitted at
trial, People v Lawton, 196 Mich App 341, 353; 492 NW2d 810 (1992). A prosecutor need not use
the blandest terms possible when making arguments, People v Ullah, 216 Mich App 669, 678; 550
NW2d 568 (1996), and when attempting to extrapolate inferences from the evidence, to support her
theory of the case. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995).
Here, the prosecutor commented that the victim may have potentially died from the herpes
condition that she allegedly contracted from defendant. However, prior to this, in his closing argument,
defense counsel: (1) stated that the victim was a liar; (2) implied that she fabricated her allegations to
protect another unnamed sexual partner; (3) indicated that she fabricated her allegations to retaliate
against defendant for suspending her driving privileges; (4) stated that she fabricated her allegations to
blame someone for her herpes diagnosis; and (5) stated, “I don’t know why [the victim] hates her
father.” We conclude that the prosecution’s admittedly questionable remarks do not require reversal
because they: (1) addressed issues first raised by defense counsel, People v Wise, 134 Mich App 82,
104; 351 NW2d 255 (1984); (2) were induced by and were responsive to issues first raised by
defense counsel, People v Messenger, 221 Mich App 171, 181; 561 NW2d 463 (1997); and (3)
represented a response to defendant’s initial plea for sympathy from the jury, Delisle, supra at 671. In
addition, the trial court gave an instruction to the jury not to let sympathy or prejudice influence their
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decisionmaking process. Hart, supra at 638. Therefore, in our judgment, defendant was not denied
his right to a fair trial based on the prosecutor’s statement.
Defendant also argues that the sentencing court committed an abuse of discretion when it
sentenced him to life imprisonment for his first CSC I conviction, forty to sixty years’ imprisonment for
his second CSC I conviction, and fifteen to thirty years’ imprisonment for each CSC II conviction.
However, a sentencing court has broad discretion in determining an offender’s sentence. People v
Coles, 417 Mich 523, 537; 339 NW2d 440 (1983), overruled in part on other grounds People v
Milbourn, 435 Mich 630; 461 NW2d 1 (1990). The sentencing court does not abuse its discretion
unless it violates the “principle of proportionality,” which requires that an offender’s sentence be
proportionate to the circumstances surrounding the immediate offense and his prior criminal behavior.
Milbourn, supra at 635-36.
Defendant’s sentences of life imprisonment and forty to sixty years’ imprisonment for his CSC I
convictions are both within the minimum guideline range of twenty to forty years or life. See Michigan
Sentencing Guidelines, Grids - Criminal Sexual Conduct (2d ed), at 47. Therefore, his CSC I
convictions are presumed to be neither unfairly disparate nor excessively severe, People v Broden, 428
Mich 343, 354-355; 408 NW2d 789 (1987), because they fall within the minimum guideline range,
albeit at the high end, People v Vettese, 195 Mich App 235, 246-247; 489 NW2d 514 (1992).
Because defendant failed to advance any unusual circumstances mitigating his offense, Sharp, supra at
505, we conclude that the sentence did not violate the principle of proportionality.1 Milbourn, supra at
661.
Defendant next argues that he was denied his right to the effective assistance of counsel because
counsel failed to have him psychologically evaluated regarding his criminal responsibility. Defendant
failed to preserve this issue by creating a testimonial record through a motion for an evidentiary hearing
or a new trial, People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973), and our review is
therefore limited to the lower court record, People v Nantelle, 215 Mich App 77, 87; 544 NW2d 667
(1996). To establish a claim of ineffective assistance of counsel, the defendant must show (1) that
defense counsel’s performance fell below an objective standard of reasonableness measured by
professional norms; (2) that but for defense counsel’s error, there was a reasonable probability that the
result of the proceedings would have concluded differently; and (3) that the result of the proceeding was
unreliable or fundamentally unfair. People v Mitchell, 454 Mich 145, 157-158; 560 NW2d 600
(1997). Further, defendant has the burden of overcoming a presumption of effective assistance, People
v Sardy, 216 Mich App 111, 116; 549 NW2d 23 (1996), by establishing that defense counsel failed to
perform some essential duty that prejudiced him or by illustrating that counsel failed to meet a minimum
level of competence. People v Jenkins, 99 Mich App 518, 519; 297 NW2d 706 (1980). We review
the issue of defense counsel’s performance by applying an objective standard of reasonableness and do
not engage in the benefit of hindsight. People v LaVearn, 448 Mich 207, 216; 528 NW2d 721
(1995). With regard to issues of trial strategy, we will not substitute our judgment for that of defense
counsel. People v Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987).
Regarding the failure to request that defendant be evaluated regarding his criminal responsibility,
we recognize that the failure to have a defendant with a history of psychological problems evaluated
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regarding criminal responsibility before counseling him to plead guilty to a criminal offense may
potentially constitute i effective assistance. People v Nyberg, 140 Mich App 160, 166; 362 NW2d
n
748 (1984). However, because defendant here maintained his innocence, counsel was obligated “to
follow his client’s wishes and argue that he was innocent at trial rather than raise an insanity defense.”
People v Newton (After Remand), 179 Mich App 484, 490; NW2d (1989). Therefore, based on the
trial court record, we find that defense counsel’s failure to plead an insanity defense represented a
matter of trial strategy and will not s
ubstitute our judgment for that of counsel with the benefit of
hindsight. Id. at 493.
Defendant next argues that the trial court abused its discretion when it excluded the victim’s
“shot and immunization records” as irrelevant. Because the decision to admit or exclude evidence is
within the trial court’s discretion, we will not reverse unless we conclude that “an unprejudiced person,
considering the facts on which the trial court acted, would say there is no justification or excuse for the
ruling made.” People v Gould, 225 Mich App 79, 88; 570 NW2d 140 (1997). Generally, all
evidence with “any tendency to make the existence” of a material fact more or less probable is
admissible. MRE 401, 402; People v VanderVliet, 444 Mich 52, 60-61; 408 NW2d 114 (1993).
Evidence is relevant if it is helpful in “throwing light” on a material point. People v Kozlow, 38 Mich
App 517, 524-525; 196 NW2d 792 (1972). Although evidence need not relate to an element of the
crime charged or a defense to be material, it must be within the range of litigated matters in controversy.
People v Brooks, 453 Mich 511, 518; 557 NW2d 106 (1996). Materiality and relevance are
governed by the elements of the charge, theories of admissibility, and defenses asserted. Id.
Although a defendant is entitled to a reversal of his conviction when a trial court improperly
excludes evidence supporting an element of his theory of the case, Brooks, supra at 289, an abuse of
discretion does not occur when the trial court excludes evidence that s speculative or irrelevant.
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People v Price, 112 Mich App 791, 799-800; 317 NW2d 249 (1982). Defendant sought the
introduction of the “shot and immunization” records at trial specifically in order to “establish the fact that
at the time when the children [of defendant] were being seen for their innoculations at the health
department, those records will establish the fact that [the victim] had never had sex.” Our independent
review of the victim’s “shot and immunization records” discloses no information n support of this
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proposition and, therefore, confirms the analysis of the trial court. Therefore, we conclude that the trial
court did not commit an abuse of discretion by excluding these records.
Affirmed.
/s/ Barbara B. MacKenzie
/s/ Richard A. Bandstra
/s/ Stephen J. Markman
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Although the sentencing court’s comment that defendant was a “worthy candidate” for capital
punishment may, to some, appear hostile or biased to defendant, it is well settled that sentencing is the
appropriate time for comments regarding felonious, antisocial behavior and that a court need not use
“tepid” language when levying its penalty. People v Antoine, 194 Mich App 189, 191; 486 NW2d 91
(1992).
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