PEOPLE OF MI V DANIEL ROGALA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 25, 2002
Plaintiff-Appellee,
v
No. 224941
Wayne Circuit Court
LC No. 99-005742
DANIEL ROGALA,
Defendant-Appellant.
Before: Zahra, P.J., and Cavanagh and White, JJ.
PER CURIAM.
Defendant was convicted by a jury, as charged, of armed robbery, MCL 750.529, and
possession of a firearm during the commission of a felony, MCL 750.227b. He was sentenced to
consecutive prison terms of two years for the felony firearm conviction, and ten to twenty years
for the armed robbery conviction. He appeals as of right. We affirm.
I
Defendant first argues that the trial court erred in allowing the prosecutor to impeach him
with a prior conviction for attempted receiving or concealing stolen property, MCL 750.535(1);
MCL 750.92. We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. People v Smith, 456 Mich 543, 549-550; 581 NW2d 654 (1998).
The admissibility of a prior conviction for impeachment purposes is governed by MRE
609. Here, defendant’s prior conviction for attempted receiving or concealing stolen property
involves a crime that contains an element of theft and was punishable by imprisonment for more
than one year. This conviction reflects on defendant’s veracity because the offense of receiving
or concealing stolen property generally involves a misrepresentation relating to the right of
possession of property. Additionally, the prejudicial effect of admitting the prior conviction was
low because the conviction was not similar to the charged offenses, and admission of the
conviction did not affect defendant’s decision to testify. We agree, therefore, that the prior
conviction was admissible under MRE 609(a)(2). Although the trial court did not articulate its
analysis of each of the MRE 609 factors, contrary to MRE 609(b), this error was harmless
because the conviction was properly admissible under MRE 609. People v Daniels, 192 Mich
App 658, 671; 482 NW2d 176 (1991).
II
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Next, defendant argues that a pretrial photographic showup was improperly conducted
without the presence of counsel. We disagree. The trial court correctly ruled that, because
defendant was not in custody at the time of the showup, he did not have a right to counsel.
People v Kurylczyk, 443 Mich 289, 302; 505 NW2d 528 (1993). Additionally, we find no merit
to defendant’s claim that this case presented unusual circumstances requiring the appointment of
counsel. See People v Lee, 243 Mich App 163, 182; 622 NW2d 71 (2000), and People v
McKenzie, 205 Mich App 466, 470-473; 517 NW2d 791 (1994).
III
Defendant next argues that the evidence was insufficient to support his felony-firearm
conviction. We disagree. The sufficiency of the evidence is to be evaluated by reviewing the
evidence in the light most favorable to the prosecution, to determine whether a rational trier of
fact could find every element of the crime proven beyond a reasonable doubt. People v Petrella,
424 Mich 221, 268-270; 380 NW2d 11 (1985).
Defendant correctly asserts that the statutory definition of a “firearm” specifically
excludes “any smooth bore rifle or handgun designed and manufactured exclusively for
propelling BB’s not exceeding .177 caliber by means of spring, gas, or air.” MCL 8.3t; People v
Gee, 97 Mich App 422, 424; 296 NW2d 52 (1980). At trial, the victim testified that the man
who robbed her pointed a large gun, about ten or twelve inches long, in her face. This testimony
was sufficient to allow the jury to conclude that defendant possessed a firearm during the
commission of a robbery. Although defendant presented evidence that he owned a BB gun1 that
was similar in appearance to the weapon used in the robbery, defendant also denied any
involvement in the robbery. Viewed most favorably to the prosecution, a rational trier of fact
could have found beyond a reasonable doubt that the BB gun owned by defendant was not the
weapon used in the robbery. We note that the prosecutor is not obligated to “negate every
reasonable theory consistent with innocence”; rather, he “need only convince the jury ‘in the face
of whatever contradictory evidence the defendant may provide.’” People v Nowak, 462 Mich
392, 400; 614 NW2d 78 (2000), quoting People v Konrad, 449 Mich 263, 273 n 6; 536 NW2d
517 (1995).
IV
Defendant next argues that the trial court erroneously admitted identification evidence
and, consequently, there was insufficient competent evidence of identity to support his
convictions. We disagree.
The record discloses that, while certain witnesses may not have had first-hand knowledge
of the robbery, they did not base their identifications of defendant on inadmissible hearsay.
Rather, out-of-court statements that defendant now claims were inadmissible hearsay were
introduced to explain witnesses’ behavior after the robbery, not for their truth. Therefore, the
complained of statements were not hearsay. See MRE 801(c). Identification of the perpetrator
was achieved by weaving the various witnesses’ observations and actions into a coherent story
1
No evidence was presented regarding the caliber of the BB gun.
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that led to defendant. Viewed most favorably to the prosecution, the evidence was sufficient to
enable a rational jury to find beyond a reasonable doubt that defendant was the person who
committed the armed robbery. Petrella, supra.2
V
Defendant also argues that reversal is required because of several errors at the
preliminary examination. Defendant complains that the district court erred by refusing to grant
him an adjournment, by allowing identification evidence that was inadmissible hearsay, and by
misstating the testimony of the complaining witness. However, because we have concluded that
defendant’s convictions were supported by competent evidence at trial, any errors committed at
the preliminary examination were harmless. People v Moorer, 246 Mich App 680, 682; 635
NW2d 47 (2001).
VI
Last, defendant argues that his trial attorney was ineffective. We disagree. Because
defendant failed to raise this issue in a motion for a new trial or a Ginther3 hearing in the trial
court, our review of this issue is limited to mistakes apparent on the record. People v Hurst, 205
Mich App 634, 641; 517 NW2d 858 (1994).
Whether and how to impeach witnesses is a matter of trial strategy entrusted to counsel’s
professional judgment. People v Flowers, 222 Mich App 732, 737; 565 NW2d 12 (1997). Here,
defendant has failed to show that more aggressive impeachment might have made a difference in
the outcome, as opposed to resulting in additional testimony favorable to the prosecution.
Therefore, defendant has failed to overcome the presumption of sound trial strategy. People v
LaVearn, 448 Mich 207, 216; 528 NW2d 721 (1995); Flowers, supra.
It is not apparent from the record that counsel failed to investigate, interview or depose
the prosecutor’s witnesses. Defendant has also failed to show a reasonable likelihood that
counsel could have uncovered any additional information that might have made a difference in
the outcome of trial. LaVearn, supra.
Similarly, there is no indication that the jury was confused about the layout of the scene,
or about who the witnesses testified they saw at various points. In fact, the record shows that the
scene was diagrammed at trial. There is no deficiency apparent on the record in this regard and,
accordingly, defendant has not sustained his burden of showing that counsel was ineffective.
Hurst, supra.
2
We also find meritless the argument that the trial court erred in admitting the complained of
statements. We note that only one of the five challenged statements was objected to below on
hearsay grounds. Because the statements were admissible to explain the witnesses’ actions, the
court acted within its discretion in admitting the one objected to statement, Smith, supra, and did
not commit plain error in regard to the unpreserved claims of error, People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999).
3
People v Ginther, 390 Mich 436, 442-444; 212 NW2d 922 (1973).
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At trial, one of the witnesses volunteered that he was “concerned” about what defendant
might do. There was no objection to this testimony. On rebuttal, the prosecutor argued that the
witness was afraid of defendant. Again, no objection was made. Defendant now argues that
counsel was ineffective for failing to object to these matters. Because the witness’ concern or
fear might have affected his perception and memory, the testimony was relevant to the witness’
credibility, possibly to defendant’s strategic advantage. Defendant has failed to overcome the
presumption of sound trial strategy, or shown that any alleged error affected the outcome of trial.
LaVearn, supra.
Defendant correctly notes that the prosecutor asked him to comment on the credibility of
three witnesses. These questions were improper and, absent some strategic reason, defense
counsel erred in failing to object. See People v Messenger, 221 Mich App 171, 180; 561 NW2d
463 (1997). However, defendant has failed to show a reasonable likelihood that this error
affected the outcome. LaVearn, supra.
Defendant also correctly notes that the trial court did not instruct the jury that a BB gun
of less than .177 caliber is expressly excluded from the definition of “firearm.” See MCL 8.3t
and Gee, supra. However, no evidence was presented concerning the caliber of defendant’s BB
gun. Therefore, there was no factual basis for the instruction, and the court was not required to
give it. People v Mills, 450 Mich 61, 80-81; 537 NW2d 909, modified 450 Mich 1212 (1995).
Thus, the record does not demonstrate that counsel was deficient for failing to request this
instruction.
As explained prior, the several statements defendant now claims were inadmissible
hearsay were not offered for their truth, but rather to explain the witnesses’ conduct after the
robbery. Objections to those statements would have been futile and, therefore, counsel’s failure
to lodge objections did not constitute ineffective assistance. People v Fike, 228 Mich App 178,
182; 577 NW2d 903 (1998); People v Chinn, 141 Mich App 92, 98; 366 NW2d 83 (1985).
In sum, none of the alleged instances of ineffective assistance of counsel raised by
defendant provide a basis for reversal.
Affirmed.
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ Helene N. White
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