PEOPLE OF MI V OMAR L BRAND
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 13, 2001
Plaintiff-Appellee,
V
No. 220813
Genesee Circuit Court
LC No. 98-003505-FC
OMAR L. BRAND,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and Cavanagh and Gribbs,* JJ.
PER CURIAM.
Defendant was convicted by a jury of kidnapping, MCL 750.349, and felonious assault,
MCL 750.82. He was sentenced as a second-offense habitual offender, MCL 769.10, to
concurrent terms of 22-1/2 to 40 years’ imprisonment for the kidnapping conviction and four to
six years’ imprisonment for the assault conviction. He appeals as of right. We affirm.
First, we find that the trial court did not abuse its discretion when it denied defendant’s
motion for a one-day continuance in order to obtain the presence of defense witnesses Cedric and
Keith Jones. People v Wilson, 397 Mich 76; 243 NW2d 257 (1976); People v Suchy, 143 Mich
App 136, 141-142; 371 NW2d 502 (1985). Defendant has failed to demonstrate that he was
prejudiced by the trial court’s decision. Wilson, supra at 81; Suchy, supra. As the court noted,
Cedric Jones had already testified in defendant’s behalf, providing testimony favorable to
defendant by not implicating him in the victim’s kidnapping and assault. His testimony was
stopped at the end of one day of trial and he was admonished by the court to return the following
day but he did not; a police officer went to his house but was told that both Cedric and Keith had
left. The prosecutor was thus not able to complete his cross-examination of that witness; defense
counsel indicated only that he would have asked Cedric Jones only one question on redirect
examination. Under these circumstances, it would appear that defendant was not prejudiced by
Cedric Jones’ failure to appear. Finally, there is no indication that Keith Jones’ testimony would
have been anything but cumulative to testimony already presented. The trial court noted that
both witnesses had a history of failing to appear when required, and that there was little
likelihood of their being found in one day. While a defendant need not point to a specific piece
of evidence, or claim that new evidence has been discovered, to demonstrate prejudice, there
must be some indication that the denial of the motion for continuance was prejudicial. Suchy,
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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supra at 146. Here, we conclude that defendant has failed to make a sufficient showing of
prejudice. The trial court did not abuse its discretion in denying his request for a continuance.
Next, the prosecutor did not shift the burden of proof by questioning defendant about the
absence of “Kiki.” People v Paquette, 214 Mich App 336, 342; 543 NW2d 342 (1995); People v
Noble, 238 Mich App 647, 660-661; 608 NW2d 123 (1999). It is apparent that the prosecutor
was surprised by defendant’s testimony that he was with Kiki when the kidnapping and assault
occurred, given defense counsel’s opening statement suggesting that the defense was simply one
of lack of presence. Furthermore, the trial court immediately gave a cautionary instruction,
which was sufficient to dispel any suggestion that defendant had the burden of proof.
Nor did the trial court abuse its discretion in denying defendant’s motion for a mistrial
based on the prosecutor’s failure to turn over some notes of defendant’s custodial interview.
People v Wells, 238 Mich App 383, 390; 605 NW2d 374 (1999). Defendant failed to establish a
violation of the rule announced in Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215
(1963). See People v Lester, 232 Mich App 262, 281-282; 591 NW2d 267 (1998). First, the
record does not reflect that the prosecutor possessed evidence favorable to defendant. As the
trial court remarked, the notes of the custodial interview reflected well-known facts. Second, it
is clear that defendant could have obtained the notes of the interview with the exercise of
reasonable diligence. Defendant, having made the statements reflected in the notes, had
knowledge of the material independent of discovery. Consequently, there is no indication that
the prosecution suppressed any favorable evidence or that there was a reasonable probability that
the outcome of the proceedings would have been different had the prosecutor turned over the
notes. Moreover, defendant is not entitled to a remedy for a prosecutor’s nondisclosure where
defendant, having made the statements himself, had knowledge of them independent of
discovery. See People v Taylor, 159 Mich App 468, 487-488; 406 NW2d 859 (1987).
Next, defendant claims that the trial court abused its discretion by denying his motion for
a mistrial on the basis of alleged juror misconduct. We disagree. This Court will not reverse the
trial court’s decision regarding a potentially biased juror absent a clear abuse of discretion.
Muilenberg v Upjohn Co, 169 Mich App 636, 649; 426 NW2d 767 (1988). In People v
Gonzales, 193 Mich App 263, 266; 483 NW2d 458 (1992), this Court observed that “[a] mistrial
should be granted only where the error complained of is so egregious that the prejudicial effect
can be removed in no other way.” Here, the alleged misconduct was one juror commenting to
another about the credibility of a witness. The trial court, after questioning the juror outside of
the presence of the jury, was in a superior position to evaluate the prejudicial effect of that
misconduct. We cannot conclude that the court abused its discretion in denying defendant’s
motion for a mistrial.
Defendant also claims that he was denied a fair trial by the prosecutor’s remarks during
closing rebuttal argument. Defendant contends that the prosecutor improperly vouched for the
victim’s credibility and denigrated defendant’s credibility. While we agree that the prosecutor
improperly asserted that defendant’s testimony was “lies,” we find that the prosecutor did not
vouch for the credibility of the victim. Viewed in context, the prosecutor did not suggest that he
had some special knowledge that the victim was testifying truthfully. People v Bahoda, 448
Mich 261, 276-277; 531 NW2d 659 (1995); People v Knapp, 244 Mich App 361, 382; 624
NW2d 227 (2001). Because defendant did not object to the prosecutor’s improper remarks about
defendant, he must show that there was plain error affecting his substantial rights. People v
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Carines, 460 Mich 750, 761-764, 774; 597 NW2d 130 (1999). In this case, a curative instruction
could have removed any prejudice. Knapp, supra at 382-383. Further, as in Knapp, the trial
court instructed the jurors that it was their duty to determine the credibility of the witnesses and
that the lawyers’ statements and arguments should not be considered evidence. Thus, defendant
has failed to show that his substantial rights were affected by the prosecutor’s remarks about
defendant.
Finally, defendant’s sentence for kidnapping does not violate the principle of
proportionality. People v Milbourn, 435 Mich 630, 635-636; 461 NW2d 1 (1990). The trial
court properly observed that defendant’s underlying felony and criminal history demonstrate that
he is unable to conform his conduct to the law. People v Hansford (After Remand), 454 Mich
320, 326; 562 NW2d 460 (1997).
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh
/s/ Roman S. Gribbs
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