PEOPLE OF MI V LARRY EUGENE BURGER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 17, 1999
Plaintiff-Appellee,
v
No. 212590
Hillsdale Circuit Court
LC No. 98-227844 FH
LARRY EUGENE BURGER,
Defendant-Appellant.
Before: Murphy, P.J., and Hood and Neff, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of larceny over $100, MCL 750.356; MSA
28.588, and sentenced as a second habitual offender, MCL 769.10; MSA 28.1082, to a term of 1½ to
7½ years' imprisonment. Defendant appeals as of right. We affirm.
This case arises out of the theft of a personal computer from a department store. At trial,
defendant admitted to removing the computer from the store but claimed that he did so with the
mistaken belief that the contents of the boxes containing the computer had been purchased by his wife,
who was shopping with him that day.
Defendant first contends that he was denied the effective assistance of counsel when his trial
counsel failed to request an instruction on the defense of intoxication. Because defendant failed to
request an evidentiary hearing concerning this claim, our review is limited to errors apparent on the
record. People v Wilson, 196 Mich App 604, 612; 493 NW2d 471 (1992).
To establish ineffective assistance of counsel, a defendant must demonstrate that counsel’s
performance was below an objective standard of reasonableness under prevailing professional norms,
that the results of the proceeding were fundamentally unfair or unreliable, and that there is a reasonable
probability that, but for counsel’s error, the results of the proceeding would have been different. See
People v Poole, 218 Mich App 702, 717-718; 555 NW2d 485 (1996). In attempting to persuade a
reviewing court that counsel was ineffective, a defendant bears the burden of overcoming the “strong
presumption that counsel’s assistance constituted sound trial strategy.” People v Stanaway, 446 Mich
643, 687; 521 NW2d 557 (1994).
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After review of the record, we do not believe that defense counsel rendered ineffective
assistance by failing to request a jury instruction on the defense of intoxication. Although portions of
both defendant's and his wife's testimony indicated that as a result of his ingesting alcohol and
prescription drugs defendant may n have been in possession of his full faculties on the day of the
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offense, intoxication was not the most viable defense supported by the trial testimony. Rather, the more
viable option was assertion of the defense of mistake. Defendant testified that when he left the store
with the boxes containing the computer, he mistakenly believed those boxes contained items purchased
by his wife. While defendant asserted that this mistake was due in part to his being “out of it” that day,
the basis of his claim was that he had simply made a mistake. In light of limited testimony supporting an
intoxication defense, counsel for defendant chose to emphasize the facts supporting a defense of
mistake. This Court will not second-guess defense counsel regarding matters of trial strategy. People v
Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987).
Moreover, defense counsel did not neglect the evidence indicating that defendant may have
been in a weakened state of mind at the time of the offense. Defense counsel requested and received an
instruction on the defense of mistake. Counsel utilized defendant’s ingestion of alcohol and prescription
medication to bolster this defense, arguing that in such a mental state it was understandable that
defendant could have made such a serious mistake. Given the sparse testimony evidencing intoxication,
we do not believe that the outcome of defendant's trial would have been different had defense counsel
requested an intoxication instruction. On the basis of the existing record, counsel's assistance presents
no error prejudicial to defendant's case.
Defendant next argues that he was denied a fair trial by misconduct of the prosecutor during
closing argument. Specifically, defendant asserts that in making his closing statements the prosecutor
improperly argued facts not in evidence and injected issues broader than guilt or innocence.
When reviewing instances of alleged prosecutorial misconduct, this Court must examine the
pertinent portion of the record and evaluate the prosecutor's remarks in context to determine whether
defendant was denied a fair and impartial trial. People v Legrone, 205 Mich App 77, 82-83; 517
NW2d 270 (1994). In this case, defendant did not object to any of the prosecutor's allegedly improper
argument. As recently stated by this Court in People v Green, 228 Mich App 684, 693; 580 NW2d
444 (1998):
Appellate review of improper prosecutorial remarks is generally precluded
absent an objection because it deprives the trial court of an opportunity to cure the
error. Because a well-tried, vigorously argued case should not be overturned on the
basis of a few isolated improper remarks that could have been corrected had an
objection been lodged, we will reverse in such instances only if a curative instruction
could not have eliminated the prejudicial effect of the improper remarks or where our
failure to review the issue would result in a miscarriage of justice. [Citation omitted.]
Defendant first contends that the prosecutor improperly argued facts not in evidence when he
referenced a specific weight of the boxes defendant claims he mistakenly loaded into his car. A
prosecutor may not argue facts not entered into evidence. Stanaway, supra, at 686. While we agree
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that the prosecutor erred in attributing a specific weight to the boxes, any prejudice suffered by
defendant could have been dispelled by a curative instruction on timely objection by defense counsel.
Given the lack of relevance of the challenged remark to defendant’s asserted defense, no miscarriage of
justice will result from a failure to further review this issue.
Defendant also contends that the prosecutor impermissibly interjected issues broader than guilt
or innocence when, during rebuttal argument, he noted that defendant smoked cigarettes despite his
asthma, mixed drugs and alcohol, and failed to contribute to the support of his family. Otherwise
impermissible prosecutorial comments do not require reversal where the challenged remarks address
issues raised by defense counsel. People v Vaughn, 200 Mich App 32, 39; 504 NW2d 2 (1993).
Here, the prosecutor's comments were responsive to defense counsel's closing argument comments
regarding defendant's health. As before, any perceived prejudice to defendant resulting from the
prosecutor’s comments could have been cured by an appropriate instruction upon objection by defense
counsel. Manifest injustice will not result from a failure to further review this issue.
Affirmed.
/s/ William B. Murphy
/s/ Harold Hood
/s/ Janet T. Neff
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