PEOPLE OF MI V DARRELL R RICHMOND
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 9, 2001
Plaintiff-Appellee,
v
No. 219280
Wayne Circuit Court
LC No. 98-009541
DARRELL R. RICHMOND,
Defendant-Appellant.
Before: Zahra, P.J., and Smolenski and Gage, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of assault with intent to commit armed
robbery, MCL 750.89; MSA 28.284, first-degree home invasion, MCL 750.110a(2); MSA
28.305(a)(2), and felonious assault, MCL 750.82; MSA 28.277. The trial court sentenced
defendant to a term of 5-10 years’ imprisonment for the assault with intent to rob conviction, a
term of 5-20 years’ imprisonment for the first-degree home invasion, and a term of 1-4 years’
imprisonment for the felonious assault conviction. Defendant appeals as of right. We affirm.
The prosecutor’s case in chief involved the testimony of two witnesses, the complainant
and the arresting officer. The complainant testified that defendant forcibly entered his apartment
under the pretense that he had a firearm and that defendant robbed and assaulted him inside the
apartment. Upon discovering that defendant was armed with a tire iron and not a firearm, the
complainant was able to overpower defendant and hold him down until police arrived. The
arresting officer testified that he searched the defendant when he arrived at the scene, and that he
discovered the complainant’s wallet and jewelry in defendant’s pocket. On cross-examination,
the officer testified that he did not question defendant at the scene, but indicated that defendant
did make some statements to police. Defense counsel did not ask the officer what those
statements were. Rather, he highlighted the officer’s failure to record defendant’s statements in
the police report.
Defendant then testified on his own behalf, presenting a different version of events.
Defendant testified that he arrived at the complainant’s apartment building in search of a woman
named Bridgett, whom defendant had met the previous week. Although defendant had neither
Bridgett’s telephone number nor her address, defendant testified that he decided to look for her in
the complainant’s apartment building because he saw people standing outside. Defendant
claimed that he entered the apartment building and that the complainant and an unidentified man
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assaulted him, without warning or provocation, and that the unidentified man fled before police
arrived. Defendant denied that he possessed the complainant’s wallet or jewelry at the time of
his arrest.
After defendant testified, the prosecutor recalled the arresting officer as a rebuttal witness.
The officer then testified regarding the statements that defendant made to police at the time of his
arrest. According to the officer, defendant stated that the complainant was a homosexual who
had tried to offer defendant sex. The officer testified that defendant said nothing about searching
for a woman named Bridgett. Defendant’s trial counsel then vigorously cross-examined the
officer regarding his failure to record defendant’s statements in the police report.
Defendant first argues that the prosecutor improperly introduced the arresting officer’s
rebuttal testimony and that the error deprived defendant of a fair trial. We disagree.
Because defense counsel failed to object to the police officer’s rebuttal testimony at trial,
we review this issue only for manifest injustice. People v Ramsdell, 230 Mich App 386, 404;
585 NW2d 1 (1998). The admission of rebuttal evidence is within the sound discretion of the
trial judge and will not be disturbed absent a clear abuse of discretion. People v Figgures, 451
Mich 390, 398; 547 NW2d 673 (1996). Rebuttal evidence is admissible to “‘contradict, repel,
explain or disprove evidence produced by the other party and tending directly to weaken or
impeach the same.’” Id. at 399, quoting People v Delano, 318 Mich 557, 570; 28 NW2d 909
(1947).
Defendant contends that the officer’s testimony did not constitute proper rebuttal because
the prosecutor could have elicited the officer’s testimony regarding defendant’s statements during
the prosecutor’s case in chief. However, that is not the proper test for the admission of rebuttal
evidence:
The test of whether rebuttal evidence was properly admitted is not whether
the evidence could have been offered in the prosecutor’s case in chief, but, rather,
whether the evidence is properly responsive to evidence introduced or a theory
developed by the defendant. As long as evidence is responsive to material
presented by the defense, it is properly classified as rebuttal. [Figgures, supra at
399 (internal citations omitted).]
We conclude that the police officer’s testimony was properly responsive to a theory developed by
the defendant. When testifying on his own behalf, defendant claimed that he entered the
complainant’s apartment building in search of a woman named Bridgett, where he was attacked
by an unidentified man. The officer’s testimony that defendant did not mention a woman named
Bridgett at the time of his arrest tended to rebut defendant’s version of events. Therefore, we
conclude that the trial court did not abuse its discretion in admitting the police officer’s rebuttal
testimony, and conclude that no manifest injustice occurred.1
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Defendant also argues that the police officer’s rebuttal testimony tended to imply that defendant
was homosexual, and that the prosecutor introduced the rebuttal testimony in order to prejudice
(continued…)
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Defendant next argues that prosecutorial misconduct denied him a fair trial. Defendant
contends that, during rebuttal closing argument, the prosecutor impermissibly denigrated defense
counsel and impermissibly bolstered the credibility of prosecution witnesses. We disagree.
Defendant challenges the following comment which the prosecutor made in rebuttal
closing argument: “It’s my job to conduct a fair trial. It’s his job to win.” Defendant contends
that the prosecutor’s comment implied that defense counsel had no duty to ensure a fair trial.
Defendant concludes that this comment impermissibly bolstered the prosecutor’s credibility and
ethics and denigrated defense counsel. Moreover, defendant challenges the prosecutor’s
comment that the police officer had testified truthfully because it was “his job to come in here
and tell the truth.” Defendant argues that the prosecutor’s comment effectively vouched for the
credibility of the witness. Defendant concludes that these remarks prejudiced the jury and
deprived him of a fair trial.
Appellate review of a prosecutor’s allegedly improper remarks is precluded if the
defendant fails to timely and specifically object to such remarks, unless a curative instruction
could not have eliminated possible prejudice or unless a failure to review the issue will result in a
miscarriage of justice. People v Kelly, 231 Mich App 627, 638; 588 NW2d 480 (1998). Because
defendant’s trial counsel failed to object to the prosecutor’s comments, we review this
unpreserved issue for plain error. People v Schutte, 240 Mich App 713, 720; 613 NW2d 370
(2000). Instances of prosecutorial misconduct are decided on a case by case basis, Kelly, supra at
637, and this Court must examine the pertinent portion of the record and evaluate the
prosecutor’s remarks in context. Schutte, supra at 721. Reversal is warranted only when the
plain error resulted in the conviction of an actually innocent defendant or seriously affected the
fairness, integrity, or public reputation of judicial proceedings, independent of the defendant’s
innocence. Id. at 720.
Our review of the trial court record convinces us that the prosecutor’s remarks constituted
proper response to defense counsel’s closing argument. Defense counsel argued that it was the
prosecutor’s job to win a conviction. He also argued that the officer had an interest in helping
the prosecutor convict defendant. Therefore, he argued that the officer was “testifying in a way
that supports his efforts to convict my client.” Taken in context, it is evident that the
prosecutor’s comments were made in response to allegations made by defense counsel.
Accordingly, we find that no prosecutorial misconduct occurred.
Finally, defendant argues that his trial counsel rendered ineffective assistance because his
failure to object to the rebuttal testimony and to the prosecutor’s statements arose from
(…continued)
the jury against defendant. Defense counsel misconstrues the rebuttal testimony. According to
the officer, defendant stated that the complainant was homosexual, and that the complainant had
tried to force sexual relations on him. This testimony did not raise any implication that
defendant was homosexual. Further, any potential prejudice which might have been created by
this testimony would have been directed at the complainant, not defendant. Accordingly, we
reject defendant’s claim of error.
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insufficient knowledge of the facts and the applicable law needed to meet the legal challenges
likely to be encountered at trial. We disagree.
Defendant failed to move for new trial or an evidentiary hearing on the ground of
ineffective assistance of counsel. Therefore, we review this issue only to the extent that the
appellate record contains sufficient detail to support the defendant’s claim. People v Sabin (On
Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). To establish ineffective
assistance of counsel, a defendant must show that his counsel’s performance fell below an
objective standard of reasonableness and so prejudiced the defendant that he was denied the right
to a fair trial. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). In doing so, a
defendant must overcome the strong presumption that his counsel’s action constituted sound trial
strategy under the circumstances. Id. A demonstration of prejudice requires a showing that, but
for counsel’s unprofessional errors, the results of the proceeding would be different. Id. at 302303.
As discussed above, we conclude that the introduction of rebuttal testimony and the
prosecutor’s comments did not constitute error. We cannot conclude that defendant’s trial
counsel rendered ineffective assistance when he failed to object to those issues because trial
counsel is not required to advocate a meritless position. People v Snider, 239 Mich App 393,
425; 608 NW2d 502 (2000). Moreover, defense counsel used the police officer’s rebuttal
testimony to impeach the officer’s credibility. Indeed, defense counsel used the inconsistencies
between the police report and the officer’s testimony as a central component of his defense.
Therefore, it is reasonable to infer that his failure to object to the officer’s rebuttal testimony
must have been trial strategy. This Court will not substitute its judgment for that of trial counsel
regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of
hindsight. People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).
Affirmed.
/s/ Brian K. Zahra
/s/ Michael R. Smolenski
/s/ Hilda R. Gage
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