PEOPLE OF MI V STEPHEN BRYAN ZAVORSKI
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 1, 2002
Plaintiff-Appellee,
v
No. 227973
Gladwin Circuit Court
LC No. 99-006407-FH
STEPHEN BRYAN ZAVORSKI,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and Zahra and Owens, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of one count each of: (i) first-degree
home invasion, MCL 750.110a(2); (ii) possession of a firearm during the commission of a
felony, MCL 750.227b; and (iii) felon in possession of a firearm, MCL 750.224f.1 Defendant
was sentenced, as a third habitual offender, MCL 769.11, to concurrent terms of 17½ to 40
years’ imprisonment for the home invasion conviction and six to ten years’ imprisonment for the
felon in possession of a firearm conviction. In addition, defendant was sentenced to a
consecutive term of two years’ imprisonment for the felony-firearm conviction. He appeals as of
right. We affirm.
I
Defendant contends that the victim’s pretrial identification violated his due process rights
because the photographic lineup was “impermissibly suggestive.” Although defendant objected
below, he argued that the photograph was “not a fair and accurate representation” of him on
either the day of the incident or the preliminary examination. Defendant also contended that the
victim’s identification violated the discovery process because it occurred approximately one
week before the trial started and the prosecutor failed to provide defendant this new information.
1
The jury acquitted defendant on an additional charge of receiving and concealing stolen
property, MCL 750.535b.
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As such, defendant did not challenge the suggestiveness of the photographic lineup below. As a
result, this issue is forfeited for appellate review.
In order to avoid forfeiture under the plain error rule, defendant must prove the
following: (1) error occurred, (2) the error was plain, i.e. clear or obvious, and (3) the plain error
affected substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Generally, the third requirement requires a showing that the error affected the outcome of the
lower court proceedings. Id.
“A photographic identification procedure violates a defendant’s right to due process of
law when it is so impermissibly suggestive that it gives rise to a substantial likelihood of
misidentification.” People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1997). In determining
whether a photographic identification procedure is impermissible suggestive, we review the
totality of the circumstances, including the following factors: “the opportunity for the witness to
view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of a
prior description, the witness’ level of certainty at the pretrial identification procedure, and the
length of time between the crime and the confrontation.” People v Colon, 233 Mich App 295,
304-305; 591 NW2d 692 (1998). Where a defendant establishes that an identification procedure
was impermissibly suggestive, the remedy is exclusion of the resulting in-court identification.
Gray, supra at 114 n 8.
Here, we agree with defendant’s assertion that the photographic lineup was
impermissibly suggestive. At the preliminary examination, the victim testified that she did not
know whether defendant was the person that struck her. However, at the trial—approximately
one week after viewing the photographic lineup—she testified that defendant was, in fact, the
person that struck her. Her testimony certainly suggested that it was the photographic lineup that
formed the basis of her in-court identification. Accordingly, we believe that the admission of the
victim’s in-court identification was plainly erroneous.
However, as noted above, to avoid forfeiture, defendant must also show that the plain
error affected the outcome of the proceedings. Carines, supra at 763. Although the victim’s in
court identification may have been tainted by the photographic lineup, this “taint” was certainly
presented to the jury. For example, during defense counsel’s cross-examination, the victim
conceded that she described the perpetrator as much smaller than defendant. Similarly, defense
counsel elicited testimony that the victim was unable to identify defendant in a photographic
lineup that took place shortly after the incident. Defense counsel’s questioning significantly
undermined the reliability of the victim’s in-court identification. In light of the record, it is more
likely that the jury convicted defendant despite the victim’s in-court identification, rather than
because of her in-court identification.
Moreover, the prosecutor presented reliable and convincing identification testimony.
Several witnesses, including defendant’s brother, linked defendant to the crimes by placing the
stolen contraband in his possession within hours of the incident. There was ample testimony
indicating that defendant’s behavior following the incident reflected a “consciousness of guilt.”
The testimony indicated that defendant had enough time to commit the crime between leaving
work and arriving at his next destination. In light of this other evidence, we are not persuaded
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that the victim’s in-court identification was “outcome determinative” of defendant’s guilt.
Consequently, defendant may not avoid forfeiture of this issue.2 Carines, supra at 763.
II
Next, defendant challenges the sufficiency of the evidence supporting his convictions. A
challenge to the sufficiency of the evidence requires us to determine “whether the evidence,
viewed in a light most favorable to the people, would warrant a reasonable juror in finding guilt
beyond a reasonable doubt.” People v Nowack, 462 Mich 392, 399; 614 NW2d 78 (2000).
Circumstantial evidence, and reasonable inferences arising from it, may be sufficient to prove the
elements of a crime. People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999).
Specifically, defendant contends that there was insufficient evidence placing him at the
scene of the crime. As noted above, the victim’s in-court identification was not very reliable.
However, the victim and another witness credibly testified that the perpetrator drove the same
car that defendant did. Several witnesses placed stolen contraband in defendant’s possession—
and in defendant’s car—shortly after the incident. As also noted above, several witnesses
testified that defendant’s behavior was consistent with someone who had committed the crime.
Thus, viewing the evidence in a light most favorable to the prosecution, there was sufficient
evidence supporting the jury’s finding that defendant was the perpetrator. Nowack, supra at 399.
Defendant also contends that there was insufficient evidence supporting the first-degree
home invasion conviction because there were no facts supporting the aggravating circumstances.
MCL 750.110a(2) provides in pertinent part that a person is guilty of first-degree home invasion,
rather than second-degree home invasion, if “at any time while the person is entering, present in,
or exiting the dwelling” the person is either “armed with a dangerous weapon” or “[a]nother
person is lawfully present in the dwelling.” Defendant contends that even if the jury found that
he possessed the firearms that he allegedly stole, there was no evidence that he was armed with
the firearms at any time.
2
Defendant also contends that trial counsel’s failure to object to the in-court identification on the
grounds that it was impermissibly suggestive deprived him of his constitutional right to effective
assistance of counsel. Because defendant did not request a new trial or an evidentiary hearing on
this issue, our review is limited to the facts on the record. People v Snider, 239 Mich App 393,
423; 608 NW2d 502 (2000). A successful claim of ineffective assistance of counsel requires a
defendant to “show that counsel’s performance was deficient and that there is a reasonable
probability that, but for the deficiency, the factfinder would not have convicted the defendant.”
Id. at 423-424. Again, in light of the damaging identification testimony introduced by witnesses
other than the victim, we do not believe that defendant’s conviction was based on the victim’s in
court identification. Thus, defense counsel’s failure to argue that the photographic lineup was
impermissibly suggestive was not outcome determinative. Moreover, defense counsel’s vigorous
cross-examination, which significantly undermined the reliability of the victim’s identification,
prevents us from concluding that the representation was deficient. Therefore, defendant was not
deprived of his constitutional right to effective assistance of counsel.
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Generally, we review de novo issues of statutory construction. Hinkle v Wayne Co Clerk,
245 Mich App 405, 413; 631 NW2d 27 (2001). The Hinkle panel added:
The primary goal of statutory interpretation is to give effect to the intent of the
Legislature. This determination is accomplished by reviewing the plain language
of the statute itself. If the statutory language is unambiguous, it is presumed that
the Legislature intended the clearly expressed meaning, and judicial construction
is neither required nor permitted. If the statutory language is ambiguous, only
then may we look outside the statute to ascertain the Legislature’s intent. [Id. at
414 (citations omitted).]
Here, defendant fails to cite any authority indicating that there is a meaningful distinction
between possessing a firearm and being “armed” with a firearm. MCL 750.110a does not define
“armed.” Similarly, our Legislature did not define “armed” in MCL 750.529, the armed robbery
statute. In construing MCL 750.529, we have opined that a person may be convicted of armed
robbery if he or she possesses a dangerous weapon because “the mere possession of a dangerous
weapon escalates the risk of violence and the degree of danger to the victim, even if the weapon
is not seen by the victim.” People v Hayden, 132 Mich App 273, 294; 348 NW2d 672 (1984).
We believe that this logic applies to home invasion. The risk of danger to victims (and
perpetrators, for that matter) is greatly enhanced when the perpetrator possesses a dangerous
weapon at any time during a criminal act. Indeed, the Legislature broadly defines “dangerous
weapon” to include both unloaded and inoperable firearms. MCL 750.110a(1)(b)(i). Thus, we
believe that the Legislature plainly intended for the mere possession of any firearm while
committing a home invasion to constitute an aggravating circumstance. Consequently, we
decline defendant’s invitation to construe “armed” as requiring something more than mere
possession.
Returning to the facts of the instant matter, there was circumstantial evidence indicating
that defendant possessed the stolen firearms at some time during the home invasion.
Accordingly, viewing the facts in a light most favorable to the prosecutor, sufficient evidence
was introduced to support defendant’s first-degree home invasion conviction. Nowack, supra at
399.
Defendant also challenges the sufficiency of the evidence supporting his felony-firearm
conviction. MCL 750.227b provides that a defendant is guilty of felony-firearm where he or she
“carries or has in his or her possession a firearm when he or she commits or attempts to commit a
felony . . . .” Viewing the facts in a light most favorable to the prosecution, the evidence
established that defendant possessed the firearms at some point during the home invasion.
Defendant contends, however, that a felony-firearm conviction cannot be based on a firearm
obtained during the commission of a felony.
In People v Mitchell, 431 Mich 744, 749-750; 432 NW2d 715 (1988), our Supreme Court
reversed a felony-firearm conviction based on the theft of a firearm following a breaking and
entering. The breaking and entering served as underlying felony. Id. at 745 n 3. The Court
summarily opined that it did “not view a conviction on these facts as consonant with the
legislative purpose underlying the felony-firearm statute.” Id. at 749. Accordingly, the Court
remanded to give the prosecutor an opportunity to establish that “defendant was in possession of
a firearm during the commission of the breaking and entering.” Id. at 750.
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Accordingly, there is some merit to defendant’s contention of error. However, we
believe that the Mitchell decision is distinguishable. The elements of “breaking and entering”
are as follows: “(1) the defendant broke into a building, (2) the defendant entered the building,
and (3) at the time of the breaking and entering, the defendant intended to commit a larceny
therein.” People v Cornell, 466 Mich 335, 360; 646 NW2d 127 (2002). Thus, a breaking and
entering is complete once the defendant, possessing the intent to commit a larceny, breaks into
and enters the building. Any subsequent possession of a firearm would not, technically, be a
possession during the commission of the breaking and entering, but possession after it is
accomplished.
In contrast, defendant’s underlying conviction was home invasion. A person is guilty of
home invasion where he or she enters the dwelling without permission and, at any time, commits
a felony or larceny. See generally MCL 750.110a. In other words, unlike breaking and entering,
home invasion is a continuous felony—requiring both an unlawful entry and prohibited conduct.
Thus, unlike a breaking and entering, a home invasion is not complete until the individual stops
engaging in prohibited conduct within the dwelling. A defendant who possesses a firearm during
the continuous felony does possess the firearm during the commission of the felony.
Accordingly, we do not believe that the Mitchell decision precludes a finding that a defendant
may be guilty of felony-firearm where the underlying conviction is home invasion based on the
theft of firearms.
Here, as noted above, there was a sufficient factual basis to establish that defendant
possessed the stolen firearms at some point during the home invasion, but before its conclusion.
Accordingly, defendant’s challenge to the sufficiency of the evidence supporting his felony
firearm conviction is without merit. Nowack, supra at 399.
III
Defendant contends that he was deprived of his constitutional right to effective assistance
of counsel because trial counsel should have simply stipulated to defendant’s prior felony
conviction (which was relevant to the felon in possession of a firearm charge). Instead, the jury
heard that defendant had been convicted of breaking and entering. Defendant contends that he
was prejudiced by the similarity between a breaking and entering and home invasion.
Again, defendant must “show that counsel’s performance was deficient and that there is a
reasonable probability that, but for the deficiency, the factfinder would not have convicted the
defendant.” Snider, supra at 423-424. Because defendant did not request a new trial or an
evidentiary hearing on this issue, our review is limited to the facts on the record. Id. at 423.
Here, an argument can certainly be made that defense counsel should have stipulated that
defendant had been convicted of “a felony,” rather than allowing the jury to hear that defendant
had been convicted of “breaking and entering.” The jury only needed to know the date of his
earlier conviction to determine whether defendant was a felon. Defendant may have been
prejudiced by the similarity of the earlier conviction and the charges. However, it is not clear
that substituting a vague reference to an unnamed felony would have reduced the prejudice.
Moreover, defense counsel argued that it was defendant’s breaking and entering conviction that
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caused the police to unfairly assume that he was guilty of the instant offense. This argument
required that there be some nexus between the prior felony and the charged offense.
Accordingly, we are not persuaded that trial counsel’s representation was deficient.
Regardless, even if counsel was deficient for not stipulating to this fact, it did not affect
the outcome of the proceedings. As noted above, several witnesses testified about defendant’s
possession of the stolen contraband, as well as his post-incident behavior. This evidence was far
more damaging to defendant’s case than the brief reference to his criminal past. Consequently,
defendant was not deprived of his constitutional right to effective assistance of counsel.
IV
Next, defendant contends that prosecutorial misconduct deprived of him of his
constitutional right to a fair trial. Although defendant contends that several of the prosecutor’s
comments during closing argument and rebuttal were improper, he did not object to any of the
alleged misconduct below.
Ordinarily, we review claims of prosecutorial misconduct “case by case, examining the
remarks in context, to determine whether the defendant received a fair and impartial trial.”
People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001). If the prosecutorial
misconduct issue is preserved, we evaluate “the challenged conduct in context to determine if the
defendant was denied a fair and impartial trial.” Id. Where, as here, a defendant fails to timely
and specifically object below, appellate review of the allegedly improper conduct is precluded
“unless an objection could not have cured the error or a failure to review the issue would result in
a miscarriage of justice.” People v Rodriguez, 251 Mich App 10, 30; 645 NW2d 294 (2002).
First, defendant contends that the prosecutor improperly argued that defendant was “a
liar.” Our review of the record reveals, however, that the prosecutor merely argued that
defendant’s post-incident conduct reflected a “consciousness of guilt.”3 The prosecutor’s
arguments fall well short of arguing that defendant was a liar. Moreover, the prosecutor may
argue the evidence, as well as reasonable inferences to be drawn from the evidence, as it relates
to the prosecution’s theory of the case. People v Fisher, 220 Mich App 133, 159; 559 NW2d
318 (1996). Accordingly, we find no error.
Second, defendant contends that the prosecutor’s arguments misstated the law and the
facts. In light of our analysis of defendant’s challenge to the sufficiency of the evidence
supporting his convictions, we do not believe that the prosecutor misstated the law. Similarly,
3
We further reject defendant’s suggestion that the prosecutor’s argument was contrary to CJI2d
4.4. Although the jury instruction states that flight does not “prove guilt” and that a person may
flee for “innocent reasons,” it also states that a person may flee because of “consciousness of
guilt.” Ultimately, the instruction states that the relevance of a defendant’s flight is for the jury
to decide. Here, there was evidence that defendant fled. Accordingly, the prosecutor was
permitted to argue that certain facts indicated that the flight reflected a “consciousness of guilt,”
rather than an innocent reason.
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the prosecution’s argument that defendant “confessed that he had done it” was fair commentary
on the testimony about defendant’s post-incident statements. Fisher, supra at 159.
Finally, defendant contends that the prosecutor expressed his personal belief in
defendant’s guilt. A prosecutor may not “vouch for the credibility of his witnesses to the effect
that he has some special knowledge concerning a witness’ truthfulness.” People v Bahoda, 448
Mich 261, 276; 531 NW2d 659 (1995). However, the record reveals that the prosecutor never
expressed a personal belief that defendant was guilty, but argued that the evidence suggested that
defendant was guilty. More importantly, the prosecutor’s arguments fell well short of arguing a
“special knowledge concerning a witness’ truthfulness.” Accordingly, we find no error.
Consequently, we conclude that defendant was not deprived of a fair trial because of
prosecutorial misconduct.
V
Defendant also contends that the trial court’s jury instructions were erroneous. It should
be noted, however, that defense counsel expressly approved the jury instructions after they were
given by the trial court. Thus, defendant has waived appellate review of the jury instructions.
People v Carter, 462 Mich 206, 213-214; 612 NW2d 144 (2000).
Nevertheless, defendant further contends that defense counsel was ineffective for failing
to raise these challenges to the jury instructions below. Again, our review of this issue is limited
to the record, and defendant must “show that counsel’s performance was deficient and that there
is a reasonable probability that, but for the deficiency, the factfinder would not have convicted
the defendant.” Snider, supra at 423-424.
First, defendant contends that defense counsel was ineffective for failing to request a
limiting instruction regarding the proper use of defendant’s breaking and entering conviction.
Defense counsel’s strategy was to characterize defendant’s prior conviction as the reason why
the police wrongfully accused defendant of committing the crimes. As part of this strategy,
defense counsel presented a consistent case to the jury. In other words, defense counsel’s
strategy may have been to demonstrate defendant’s confidence in his innocence by allowing the
jury to hear about the earlier crime without any limiting instruction. Alternatively, defense
counsel may have decided that it was not worth reminding the jury about the breaking and
entering conviction—even in the context of a limiting instruction. It is well established that we
will not substitute our judgment “for that of trial counsel regarding matters of trial strategy, even
if that strategy backfired.” People v Rogers, 248 Mich App 702, 715; 645 NW2d 294 (2001).
Accordingly, we are not persuaded that defense counsel was deficient for failing to request the
jury instruction. Snider, supra at 423-424.
Second, defendant contends that defense counsel should have requested CJI2d 7.8. CJI2d
provides a list of factors for a jury to consider when weighing identification testimony. Although
the trial court did not read CJI2d 7.8, the trial court generally instructed the jury regarding some
of the factors to consider when weighing witness testimony. Moreover, if CJI2d 7.8 had been
read in full, the jury would have been instructed that it could “use the identification testimony
alone to convict the defendant, as long as you believe the testimony and you find that it proves
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beyond a reasonable doubt that the defendant was the person who committed the crime.” Thus,
although CJI2d 7.8 includes several factors for the jury to consider that would have undermined the
victim’s identification testimony, it also would have invited the jury to convict defendant if it
believed her testimony. Further, defense counsel vigorously cross-examined the identifying
witnesses, and placed particular emphasis on the weaknesses in their testimony. In other words,
defense counsel ensured that the jurors were aware of the weaknesses. Therefore, even if we were
to find that counsel was deficient for failing to request the jury instruction, we would nevertheless
conclude that the failure to request the jury instruction was not outcome determinative. Snider,
supra at 423-424.
Finally, defendant contends that defense counsel was ineffective for failing to request
CJI2d 5.5 and 5.6. CJI.2d 5.5(2) broadly defines an “accomplice” as a “person who knowingly and
willingly helps or cooperates with someone else in committing a crime.” CJI2d 5.6 states: “In
general, you should consider an accomplice's testimony more cautiously than you would that of an
ordinary witness. You should be sure you have examined it closely before you base a conviction on
it.” CJI2d 5.6 further states that, in closely examining an accomplice’s testimony, the jury should
consider whether the accomplice has an interest in slanting his or her testimony against the
defendant, has a criminal record, or was promised leniency by the prosecutor in exchange for his or
her testimony.
Both of these instructions involve accomplices. Because one of defendant’s theories was
that his brother had committed these crimes, he contends that these instructions should have been
given. Indeed, defense counsel elicited testimony indicating that the prosecutor agreed not to
charge defendant’s brother (for assisting defendant’s flight and possessing the stolen firearms) if
defendant’s brother testified against defendant. Thus, there was a “deal,” as contemplated by
CJI2d 5.6. But defendant’s brother was subject to vigorous cross-examination, which was
sufficient to fairly present these issues to the jury. Accordingly, even if we were to conclude that
defense counsel was deficient for failing to request these jury instructions, we would not conclude
that the deficiency was outcome determinative. Snider, supra at 423-424.
VI
Defendant’s final issue challenges the scoring of two offense variables: OV-10 and OV
17. Defendant contends that he was improperly scored five points for each variable. However,
defendant did not challenge the scoring of these variables below. Accordingly, appellate review
of the scoring of these variables is foreclosed. See People v McGuffey, 251 Mich App 155, 165
166; 649 NW2d 801 (2002).
Regardless, MCL 777.41(1)(c) provides that five points should be scored for OV-10 if
the “offender exploited a victim by his or her difference in size or strength . . . .” The victim
testified that defendant punched her in the face. While the victim was recovering from the
punch, defendant fled. In other words, the punch allowed defendant to escape. Thus, the victim
was not able to get a longer look at defendant or his car; as noted above, the victim’s
identification testimony was not very reliable. Defendant’s punch, at the very least, contributed
to the weakness of plaintiff’s identification testimony. The record plainly indicates that
defendant is much larger than the victim. Whether based on size or strength, we believe that
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defendant exploited the victim by punching her. Accordingly, we do not believe that the trial
court erred in scoring this variable at five points.
MCL 777.47 provides that OV-17 is properly scored at five points where “the offender
failed to show the degree of care that a person of ordinary prudence in a similar situation would
have shown.” Contrary to defendant’s assertion, the statute does not limit this offense variable to
offenses involving the operation of a vehicle. Here, if anything, defendant’s conduct showed a
wanton or reckless disregard for the victim’s property. At the very least, by invading the
victim’s home and punching her, defendant failed to show the degree of care that a person of
ordinary prudence would have shown. Accordingly, we do not believe that the trial court erred
in scoring this variable at five points.
Defendant also contends that trial counsel was ineffective for failing to challenge the
scoring of these two variables below. However, trial counsel is not ineffective for failing to
advocate a meritless position. Snider, supra at 425.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Brian K. Zahra
/s/ Donald S. Owens
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