PEOPLE OF MI V KAIRI SHARIF SANDERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 9, 2002
Plaintiff-Appellee,
v
No. 231001
Genesee Circuit Court
LC No. 00-005700-FC
KAIRI SHARIF SANDERS,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and Gage and Meter, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions of carjacking, MCL
750.529a, conspiracy to commit carjacking, MCL 750.157a and MCL 750.529a, assault with
intent to commit murder, MCL 750.83, carrying a concealed weapon, MCL 750.227, felon in
possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b. He was sentenced, as a third-offense habitual offender,
MCL 769.11, to concurrent prison terms of 300 to 600 months each for the carjacking and
conspiracy convictions, 360 to 720 months for the assault conviction, 57 to 120 months each for
the CCW and felon in possession convictions, and a consecutive 2-year term for the felonyfirearm conviction. We affirm.
We reject defendant’s claim that he is entitled to a new trial because trial counsel
rendered ineffective assistance when he advised defendant against testifying. “To prove a claim
of ineffective assistance of counsel . . . a defendant must show that counsel’s performance fell
below an objective standard of reasonableness and that the deficient performance prejudiced the
defense so as to deny defendant a fair trial.” People v Smith, 456 Mich 543, 556; 581 NW2d 654
(1998). Defendant must overcome the presumption that the challenged action constituted sound
trial strategy. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). Because
defendant failed to move for either a new trial or a Ginther1 hearing, our review of his claim of
ineffective assistance of counsel is limited to the existing record. People v Nantelle, 215 Mich
App 77, 87; 544 NW2d 667 (1996).
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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During trial, there was evidence that a latent fingerprint lifted from the carjacked vehicle
matched defendant’s fingerprint. Defendant claims that, had he testified, he would have
explained that “his fingerprint could have been found in the [carjacked] vehicle because he was
employed as a car detailer.” Defendant asserts that the only reason he did not testify at trial was
because counsel erroneously advised him that he would be impeached with his prior convictions
if he testified.
Initially, we note that it is not apparent from the record that such advice was given.
Ginther, supra. However, even if we presume that counsel did advise defendant as he claims,
reversal is not required. The decision whether to call a defendant to testify is considered a matter
of trial strategy and this Court will not substitute its judgment for that of trial counsel in a matter
of trial strategy. People v Avant, 235 Mich App 499, 508; 597 NW2d 864 (1999). Moreover,
contrary to defendant’s suggestion, defense counsel’s alleged advice that defendant’s prior
convictions could be used against him for impeachment purposes was not plainly “erroneous.”
Defendant acknowledges that, had he testified, it was probable that his prior felony conviction
involving fraud could have been used to impeach him. MRE 609(a)(1). Further, subject to MRE
403 balancing, the court had discretion to admit evidence of defendant’s prior conviction for
assault with intent to commit armed robbery. See People v Cross, 202 Mich App 138, 147; 508
NW2d 144 (1993).2 Additionally, even if defendant’s prior convictions were deemed
inadmissible, defendant has also failed to show that his testimony would have changed the
outcome of the proceedings. At most, defendant’s explanation of how his fingerprint could have
landed on the carjacked vehicle would have set up a credibility contest with complainant, who
was “positive” that defendant was the perpetrator.3
2
We note that, contrary to defendant’s claim, his prior assault conviction would not have been
inadmissible simply because the conviction occurred sometime in 1994 and the instant crimes
occurred in 1999, i.e., an age factor of between four to five years. MRE 609(c) only prohibits
introduction of evidence of convictions “if a period of more than ten years has elapsed since the
date of conviction or of the release of the witness from the confinement imposed for that
conviction, whichever is the later date.” Defendant’s prior conviction is within the range of time
permitted by MRE 609(c).
3
Complainant had the opportunity to view defendant’s face before she went into the store, when
she came out of the store, and during the assault when they “were inches away from each other.”
Complainant also testified that, when she identified defendant during the lineup, there was
absolutely no question in her mind that he was the perpetrator. A police officer, who was present
during the lineup, testified that complainant positively identified defendant without hesitation.
Also, defendant’s accomplice testified that defendant committed the offense, and the
accomplice’s father testified that his son had previously told him that he committed a carjacking
with defendant.
Further, with regard to defendant’s fingerprint being found on the carjacked vehicle, there
is nothing in the record, and defendant does not assert on appeal that he had any previous contact
with the carjacked vehicle. Indeed, complainant testified at trial that the car, which belonged to
her live-in boyfriend, was purchased approximately two months before it was stolen and, to her
knowledge, he did not allow anyone else to drive the car. Complainant also testified that her
boyfriend’s family owns a car wash, where the car is washed, and that defendant was not
employed at the car wash.
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We also reject defendant’s claim that the trial court erred in failing to grant his motion for
a mistrial. We review a trial court’s grant or denial of a motion for a mistrial for an abuse of
discretion. People v Wolverton, 227 Mich App 72, 75; 574 NW2d 703 (1997). A motion for
mistrial should be granted only if there is an irregularity that is prejudicial to the defendant's
rights and impairs his ability to receive a fair trial. People v Stewart (On Remand), 219 Mich
App 38, 43; 555 NW2d 715 (1996).
During trial, complainant indicated, for the first time, that she believed that she had
attended high school with defendant approximately five years previously. Defendant claimed in
the trial court that he was entitled to a mistrial because, had the defense been aware of
complainant’s prior knowledge of defendant, it would have moved to suppress the in-court
identification on the basis that the lineup was improper given complainant’s prior knowledge of
defendant.
We find that the trial court did not abuse its discretion by denying defendant’s motion for
a mistrial because there was an insufficient showing of an irregularity that prejudiced
defendant’s rights and impaired his ability to receive a fair trial. As the trial court noted,
complainant testified that she saw defendant during the crime and at the lineup, but neither
caused her to recall that she may have attended school with him. Complainant confirmed during
trial that she did not recall defendant’s face from high school, but only recognized the name
when she was served with a subpoena after she had identified him. Complainant testified that
there is no possibility that her previous knowledge of defendant influenced her identification of
him.
Further, defendant was able to effectively raise the prior knowledge issue in front of the
jury. Defense counsel cross-examined complainant regarding her prior knowledge of defendant.
During closing argument, defense counsel addressed the alleged weaknesses in complainant’s
identification of defendant, including the effect that her prior knowledge of defendant could have
had on her identification of him as the assailant. Finally, at the conclusion of the trial, the court
included in its instructions to the jury CJI2d 3.06 (witness credibility) and CJI2d 7.8
(identification), which apprised the jury of the proper considerations in determining whether to
accept or reject eyewitness identifications. Under these circumstances, we conclude that the trial
court did not abuse its discretion by denying defendant’s motion for a mistrial.4
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Hilda R. Gage
/s/ Patrick M. Meter
4
We note that, even if the pretrial identification procedure could be considered tainted because
of complainant’s prior knowledge of defendant, the record established that there was an
independent basis to admit complainant’s in-court identification of defendant. See People v
Kachar, 400 Mich 78, 95-97; 252 NW2d 807 (1977); People v Davis, 241 Mich App 697, 702703; 617 NW2d 381 (2000).
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