PEOPLE OF MI V DAVID LAMB
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 17, 2002
Plaintiff-Appellee,
v
No. 225989
Wayne Circuit Court
LC No. 99-003949
DAVID LAMB,
Defendant-Appellant.
Before: Kelly, P.J., and Jansen and Donofrio, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of four counts of first-degree murder,
under alternative theories of premeditated murder, MCL 750.316(1)(a), and felony murder, MCL
750.316(1)(b), one count of armed robbery, MCL 750.529, and one count of possession of a
firearm during the commission of a felony, MCL 750.227b. He was sentenced to four concurrent
terms of natural life imprisonment for the murder convictions, and a consecutive two-year term
for the felony-firearm conviction. He appeals as of right. We affirm.
This case stems from allegations that, on April 4, 1999, at approximately 1:00 a.m.,
defendant and his nephew, codefendant Cordale Henry,1 robbed the Prestige Barbecue restaurant,
where Henry previously worked, during which, the restaurant owner, his brother, and his twelveyear-old son, and a cook were murdered.
I
Defendant first argues that, because the police did not have probable cause to arrest him,
the trial court abused its discretion by denying his motion to dismiss. Defendant also argues that
the trial court abused its discretion by failing to “reopen the evidentiary hearing” to allow
testimony that the warrantless entry into his residence to effectuate his arrest was not consensual.
We disagree. This Court reviews a trial court’s ruling regarding a motion to dismiss for an abuse
of discretion. People v Herndon, 246 Mich App 371, 389; 633 NW2d 376 (2001). An abuse of
discretion is found only if “an unprejudiced person, considering the facts on which the trial court
acted, would say there was no justification or excuse for the ruling.” People v Ullah, 216 Mich
App 669, 673; 550 NW2d 568 (1996).
1
Defendant and codefendant Henry were tried jointly, before separate juries.
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“A police officer may arrest an individual without a warrant if a felony has been
committed and the officer has probable cause to believe that the individual committed the
felony.” People v Kelly, 231 Mich App 627, 631; 588 NW2d 480 (1998); MCL 764.15(c).
“Probable cause requires only a probability or substantial chance of criminal activity, not an
actual showing of criminal activity.” People v Lyon, 227 Mich App 599, 611; 577 NW2d 124
(1998). Further, although “mere presence, even with knowledge that a criminal offense is about
to be or is being committed, is not enough to support a conviction of a person as an aider or
abettor . . . such presence is enough to establish probable cause justifying an arrest.” People v
DeGraffenreid, 19 Mich App 702, 708 fn 2; 173 NW2d 317 (1969) (citations omitted.) Even if
the police have probable cause to arrest a suspect, they may not enter the suspect’s residence to
make the arrest without a warrant, absent consent or exigent circumstances. People v Adams,
150 Mich App 181, 184; 388 NW2d 254 (1986). However, if a police officer has consent to
enter the defendant’s home, a subsequent arrest without a warrant supported by probable cause is
legal. People v Smith, 148 Mich App 16, 22-23; 384 NW2d 68 (1985).
In this case, the record reveals that the police had substantial evidence identifying
defendant as either one of the perpetrators or being present at the crime scene. During the
evidentiary hearing, an officer investigating the matter testified that a restaurant employee
indicated that when she left the restaurant no one was there aside from the four victims, the
codefendant, and a man whom the codefendant introduced as his uncle. Seconds after leaving
the restaurant, the employee heard noises that sounded like gunshots. The employee identified
the codefendant, whom she knew by name, and, although she could not positively identify the
second man, she was able to provide a description. The police spoke with one of defendant’s
relatives, who provided a description of defendant that was similar to the description provided by
the employee. The relative also indicated that defendant and the codefendant are related, and
that the two are often together. In addition, the codefendant’s girlfriend told the police that
defendant and the codefendant “hang out together all the time,” and also provided a description
of defendant that was consistent with the other descriptions. Given this information, the police
had probable cause to arrest defendant without a warrant. The trial court did not abuse its
discretion by denying defendant’s motion to dismiss on this basis.
We also reject defendant’s claim that the trial court abused its discretion by refusing to
“reopen the evidentiary hearing” to allow the proffered testimony that the police did not have
consent to enter his residence to make a warrantless arrest. The record reveals that during the
evidentiary hearing one of the arresting officers testified that upon arriving at defendant’s
residence, a woman answered the door, let them in, and directed them to defendant’s room. He
testified that the entry was consensual, and that they entered without force. Although the defense
did not present any evidence to the contrary, defense counsel indicated that the woman who
answered the door would testify that she did not give the police consent. However, the proposed
witness did not appear at the hearing. The trial court had previously granted an adjournment of
the hearing, at the request of defense counsel who stated that the witness could not miss work.
At the conclusion of the hearing, the court denied defendant’s motion regarding the issue of
consent, “without prejudice,” subject to the proposed witness’ testimony. On the first day of
trial, nearly one month after the hearing, defense counsel moved to “reopen the [evidentiary]
hearing,” noting that the witness had been subpoenaed to be in court on that day. However, the
witness did not appear. On the second day of trial, defense counsel informed the court that the
witness’ whereabouts were unknown. The trial court ruled that the defense had an ample
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opportunity to produce the witness, that a jury had been impaneled and sworn, and that it was
time to proceed. Under the circumstances, the trial court did not abuse its discretion by denying
defendant’s request to stop trial to take additional testimony regarding a pretrial matter,
particularly where the proposed witness had not appeared by the second day of trial. Trial courts
have a duty to control trial proceedings, with wide powers of discretion in fulfilling this duty.
MCL 768.29. This issue does not warrant reversal.
II
Next, defendant argues that the trial court clearly erred by denying his motion to suppress
his statement given to the police. Defendant contends that his statement was induced by illegal
detention, thirty hours of continuous interrogation, false promises, and the denial of his requests
for counsel and medical attention. Whether a defendant’s statement was knowing, intelligent,
and voluntary is a question of law that a court evaluates under the totality of the circumstances.
People v Cheatham, 453 Mich 1, 27, 44; 551 NW2d 355 (1996). This Court reviews a trial
court’s findings of fact for clear error when reviewing a motion to suppress evidence, however,
we review the trial court’s ultimate decision on the motion to suppress de novo. People v
Garvin, 235 Mich App 90, 96; 597 NW2d 194 (1999). Deference is given to the trial court’s
assessment of the weight of the evidence and credibility of the witnesses, and the trial court’s
findings of fact will not be disturbed unless they are clearly erroneous. People v Sexton (After
Remand), 461 Mich 746, 752; 609 NW2d 822 (2000); People v Howard, 226 Mich App 528,
543; 575 NW2d 16 (1997). A finding is clearly erroneous if it leaves the reviewing court with a
definite and firm conviction that a mistake has been made. People v Givans, 227 Mich App 113,
119; 575 NW2d 84 (1997).
Statements of a defendant made during a custodial interrogation are inadmissible unless
the defendant voluntarily, knowingly, and intelligently waived his Fifth Amendment rights.
Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966); People v Abraham,
234 Mich App 640, 644; 599 NW2d 736 (1999). Whether a statement was voluntary is
determined by examining police conduct, while whether it was made knowingly and intelligently
depends in part upon the defendant’s capacity. Howard, supra, 226 Mich App 538. The
prosecutor must establish a valid waiver by a preponderance of the evidence. Abraham, supra at
645. In People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988), our Supreme Court set
forth the following nonexhaustive list of factors that a trial court should consider in determining
whether a statement is voluntary:
the age of the accused; his lack of education or his intelligence level; the extent of
his previous experience with the police; the repeated and prolonged nature of the
questioning; the length of the detention of the accused before he gave the
statement in question; the lack of any advice to the accused of his constitutional
rights; whether there was an unnecessary delay in bringing him before a
magistrate before he gave the confession; whether the accused was injured,
intoxicated or drugged, or in ill health when he gave the statement; whether the
accused was deprived of food, sleep, or medical attention; whether the accused
was physically abused; and whether the suspect was threatened with abuse. [Id. at
334.]
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No single factor is conclusive. Id.; People v Fike, 228 Mich App 178, 181-182; 577 NW2d 903
(1998).
We conclude the trial court did not clearly err by finding that defendant gave his
statement voluntarily. Defendant, as well as the officers who took his statement, testified at the
hearing regarding the interrogation and the statement. As noted by the trial court, defendant and
the officers presented versions of the facts that “are at opposite ends of the spectrum.” The trial
court considered the largely contradictory testimony, noting that defendant signed his statement
and three constitutional rights forms and, concluding that defendant’s account was not credible,
determined the statement was voluntary. This Court will defer to the “trial court’s superior
ability to view the evidence and witnesses.” People v Peerenboom, 224 Mich App 195, 198; 568
NW2d 153 (1997); see also Sexton (After Remand), supra, 461 Mich 752.
Defendant has not demonstrated the trial court’s finding of credibility was clearly
erroneous. Aside from his claims, defendant did not offer any corroborating evidence that he
was subjected to days of continuous interrogation, or that he was induced into making a
statement by promises of being released or by the denial of counsel or medical attention. We
note that defendant admitted that he signed the constitutional rights forms and the statement,
even though he claimed to have made only part of it. There was evidence that defendant had
previous experience with the police. Although defendant was arrested several hours before
giving his statement, there is no evidence that the delay or anything that occurred during that
time, forced him to state that he was at the scene during the crimes, or otherwise prohibited him
from acting of his own free will. See, e.g., People v McKinney, 251 Mich App 205; 650 NW2d
353 (2002). Viewing the totality of the circumstances, the record does not leave us with a firm
and definite conviction that a mistake has been made. The trial court did not clearly err by
denying defendant’s motion to suppress his statement.
III
Defendant also argues that, because there was insufficient evidence to support the
charges, the trial court erred by denying his motion for directed verdict. We disagree. This
Court reviews a trial court’s decision on a motion for directed verdict de novo to determine
whether the evidence, viewed in the light most favorable to the prosecution, could persuade a
rational trier of fact that the prosecution proved the essential elements of the crime beyond a
reasonable doubt. People v Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001). This Court
will not interfere with the trier of fact’s role of determining the weight of the evidence or the
credibility of the witnesses. People v Mehall, 454 Mich 1, 6; 557 NW2d 110 (1997).
Circumstantial evidence and reasonable inferences arising from the evidence can constitute
satisfactory proof of the elements of the crime, People v Truong (After Remand), 218 Mich App
325, 337; 553 NW2d 692 (1996), and all conflicts in the evidence must be resolved in favor of
the prosecution. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
In order to convict a defendant of first-degree premeditated murder, the prosecution must
prove that the defendant intentionally killed the victim and that the killing was premeditated and
deliberate. People v Anderson, 209 Mich App 527, 537; 531 NW2d 780 (1995). “Premeditation
and deliberation require sufficient time to allow the defendant to take a second look.” Id. The
elements of premeditation and deliberation may be inferred from the circumstances surrounding
the killing. People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993). The following
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nonexclusive list of factors may be considered to establish premeditation and deliberation: “(1)
the previous relationship between the defendant and the victim; (2) the defendant’s actions
before and after the crime; and (3) the circumstances surrounding the killing itself, including the
weapon used and the location of the wounds inflicted.” People v Coddington, 188 Mich App
584, 600; 470 NW2d 478 (1991).
During trial, the prosecution relied on an aiding and abetting theory. A person who aids
or abets the commission of a crime may be convicted and punished as if he directly committed
the offense. MCL 767.39. “To support a finding that a defendant aided and abetted a crime, the
prosecution must show that (1) the crime charged was committed by the defendant or some other
person, (2) the defendant performed acts or gave encouragement that assisted the commission of
the crime, and (3) the defendant intended the commission of the crime or had knowledge that the
principal intended its commission at the time he gave aid and encouragement.” People v
Izarraras-Placante, 246 Mich App 490, 495-496; 633 NW2d 18 (2001) (citation and internal
quotations omitted).
Viewed in a light most favorable to the prosecution, sufficient evidence was presented
from which a jury could infer all necessary elements. The codefendant knew the restaurant
owner because he had previously worked for him at the restaurant. As the prosecution theorized
during trial, it could be inferred that the codefendant used his previous relationship with the
owner to gain access to the restaurant after closing. A restaurant employee who was familiar
with the codefendant, testified that when she left the restaurant, the four victims, the
codefendant, and another man, whom the codefendant introduced as his uncle, were the only
people at the establishment. Although the employee did not know defendant and could not
positively identify him, there was no dispute that he is the codefendant’s uncle. In a statement
made to the police, defendant admitted that he is the codefendant’s uncle and that he was at the
establishment on the evening in question. The employee testified that within seconds of her
leaving the restaurant by bike, she heard noises that sounded like gunshots. When she arrived
home, in approximately five minutes, she called the restaurant and there was no answer. While
she was still on the phone, the codefendant unexpectedly knocked on her door. The employee’s
boyfriend, who also knew the codefendant, stepped outside and talked to him very briefly, and
the codefendant then got into the passenger side of a car and left.
Hours later, the four victims were found dead, having been shot at close range. The
restaurant owner was shot twice, once in the face and once in the back of the head. The owner’s
brother sustained a single gunshot wound in the head, and was found in a kneeling position,
clasping rosary beads. The owner’s twelve-year-old son sustained one gunshot wound in the
back of the head. The evidence indicated that the fourth victim attempted to escape, but was shot
multiple times, in the back and in the head. There was evidence that two types of spent shell
casings were recovered, indicating that the gunshots were fired from two different weapons. The
pants that defendant was wearing on the night of the incident had gunshot residue on both the left
and right front pockets, indicating that he had recently fired a gun. When defendant was arrested
he initially gave a false statement to the police, denying that he was at the restaurant. In a
subsequent statement, he admitted that he was at the restaurant, but claimed that another
individual had committed the crimes. However, no evidence was developed linking another
individual to the crimes. We find that this evidence, viewed in a light most favorable to the
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prosecution, was sufficient for a rational trier of fact to conclude that the elements of
premeditated murder were proved beyond a reasonable doubt.
The elements of first-degree felony murder are (1) the killing of a human being, (2) with
the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily
harm with knowledge that death or great bodily harm was the probable result, i.e., malice, and
(3) while committing, attempting to commit, or assisting in the commission of any of the felonies
enumerated in MCL 750.316(1)(b). People v Nowack, 462 Mich 392, 401; 614 NW2d 78
(2000). Defendant challenges the third element. “[L]arceny of any kind” is among the felonies
enumerated in MCL 750.316. “Larceny is the taking and carrying away of the property of
another, done with felonious intent and without the owner’s consent.” People v Gimotty, 216
Mich App 254, 257-258; 549 NW2d 39 (1996). An attempt consists of the intent to do an act or
to bring about consequences that would amount to a crime, and an act in furtherance of that
intent that goes beyond mere preparation. People v Jones, 443 Mich 88, 100; 504 NW2d 158
(1993).
Viewed in a light most favorable to the prosecution, the evidence was sufficient for a
rational trier of fact to conclude that the victims were killed during the commission, or attempted
commission, of a larceny. On the day of the incident, the restaurant was very busy because it
was a holiday weekend. The owner only kept enough money in the cash register to make change
for customers, and kept the rest of the money, including any large bills, on his person. However,
when the victims were discovered the owner was lying facedown on the floor, and his left pants
pocket was turned inside out, with only a dime on his person. There was also evidence that the
restaurant’s cash register was open and empty. Although a cash drawer still contained small bills
of fives and ones, it was under the service counter out of plain view. This evidence, viewed in a
light most favorable to the prosecution, is sufficient to sustain defendant’s conviction for felony
murder, including the predicate felony of larceny.2 The trial court did not err by denying
defendant’s motion for directed verdict.
IV
Defendant next argues that the trial court abused its discretion by denying his motion for
a mistrial as a result of the prosecutor’s improper remarks during rebuttal argument. Again we
disagree. This Court reviews a trial court’s ruling on a motion for a mistrial for an abuse of
discretion. People v Griffin, 235 Mich App 27, 36; 597 NW2d 176 (1999). “A mistrial should
be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs his
ability to get a fair trial.” Id. (citation omitted). Further, with respect to the underlying claims of
prosecutorial misconduct, because defendant failed to timely object, this Court reviews those
unpreserved issues for plain error that affected the defendant’s substantial rights, i.e., that
2
We note that defendant’s suggestion that a larceny could not be established here because
jewelry and money were left in the restaurant is without merit. Defendant has failed to cite any
authority for his claim that every valuable item must be taken before a larceny is established, and
this Court will not search for authority to sustain a party's position. People v Watson, 245 Mich
App 572, 587; 629 NW2d 411 (2001).
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affected the outcome of the proceedings. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999); People v Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000).
We reject defendant’s claim that he was entitled to a mistrial because during rebuttal
argument the prosecutor asked the jury to be “the[] voices” of the four victims. Although
appeals to the jury to sympathize with the victim constitute improper argument, People v Wise,
134 Mich App 82, 104; 351 NW2d 255 (1984), the comments at issue occurred during rebuttal,
at the end of a lengthy discussion of the evidence, were isolated, and were not so inflammatory
that defendant was prejudiced. See People v Mayhew, 236 Mich App 112, 122-123; 600 NW2d
370 (1999). Further, during his argument, the prosecutor asked the jury to compare all the
testimony and physical evidence, and to use common sense when deciding the case. In any
event, the court’s instructions that the jury should not be influenced by sympathy or prejudice,
and that the lawyers’ comments are not evidence cured any prejudice. People v Long, 246 Mich
App 582; 588; 633 NW2d 843 (2001), citing People v Bahoda, 448 Mich 261, 281; 531 NW2d
659 (1995).
We also reject defendant’s claim that the prosecutor shifted the burden of proof by
commenting on defense counsel’s failure to challenge the credibility of a prosecution witness. A
prosecutor may not imply that a defendant must prove something or present a reasonable
explanation because such an argument tends to shift the burden of proof. People v Guenther,
188 Mich App 174, 180; 469 NW2d 59 (1991). However, it is permissible for a prosecutor to
observe that evidence against a defendant is undisputed, and, although a defendant has no burden
to produce any evidence, once he advances a theory, argument with regard to the inferences
created does not shift the burden of proof. People v Godbold, 230 Mich App 508, 521; 585
NW2d 13 (1998).
The prosecutor’s comments, made during rebuttal argument, were focused on refuting
defense counsel’s claim made during closing argument that another individual was the actual
killer. The prosecutor noted that defense counsel did not challenge the employee’s testimony
that the other individual was not at the restaurant when she left, and that her testimony was
consistent with the other individual’s testimony. This argument was not improper. Further,
otherwise improper prosecutorial remarks might not require reversal if they address issues raised
by defense counsel. People v Duncan, 402 Mich 1, 16; 260 NW2d 58 (1977); People v Simon,
174 Mich App 649, 655; 436 NW2d 695 (1989). The trial court instructed the jury that
defendant did not have to offer any evidence or prove his innocence, and that the prosecution
was required to prove the elements of the crimes beyond a reasonable doubt. Juries are
presumed to follow their instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229
(1998). Because the prosecutor’s remarks did not deny defendant a fair trial, the trial court did
not abuse its discretion by denying his motion for a mistrial.
V
Defendant also raises several arguments, in propria persona. Defendant argues that the
circuit court erred by denying his motion to quash the information. We disagree. This Court
reviews a circuit court’s decision to deny a motion to quash de novo to determine if the district
court abused its discretion in ordering the bindover. People v Orzame, 224 Mich App 551, 557;
570 NW2d 118 (1997). When reviewing a magistrate’s decision to bind over a defendant for
trial, the circuit court must consider the entire record of the preliminary examination and it may
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not substitute its judgment for that of the magistrate. Id. A district court’s determination that
sufficient probable cause exists will not be disturbed unless the determination is wholly
unjustified by the record. People v Reigle, 223 Mich App 34, 37; 566 NW2d 21 (1997).
A district court must bind a defendant over for trial when the prosecutor presents
competent evidence constituting probable cause to believe that a felony was committed and that
the defendant committed that felony. MCL 766.13; MCR 6.110(E); Reigle, supra, 223 Mich
App 37. “Probable cause exists where the court finds a reasonable ground of suspicion,
supported by circumstances sufficiently strong in themselves to warrant a cautious person to
believe that the accused is guilty of the offense charged.” Orzame, supra, 224 Mich App 558,
citing MCL 766.13, MCR 6.110(E). Although there must be evidence of each element of the
crime charged, or evidence from which the elements may be inferred, the prosecutor is not
required to prove each element beyond a reasonable doubt. People v Selwa, 214 Mich App 451,
457; 543 NW2d 321 (1995). Where the evidence is conflicting, or otherwise raises a reasonable
doubt with respect to the defendant’s guilt, the defendant should be bound over for trial for
resolution of the issue by the trier of fact. Id.
During the preliminary examination, a restaurant employee gave testimony consistent
with the testimony presented at trial. After being arrested, defendant initially gave a false
exculpatory statement, but subsequently admitted that he was at the restaurant during the crimes.
Our review of the record reveals that the testimony provided competent evidence to support an
inference that defendant committed the crimes charged.3 Accordingly, the trial court did not err
by denying his motion to quash the information.
VI
Defendant next argues that the trial court was biased against him, as evidenced by its
conduct in shifting the burden of proof to him to prove that the warrantless entry into his
residence to effectuate his arrest was consensual. We disagree. Because defendant failed to
move for disqualification in the trial court pursuant to MCR 2.003, this Court’s review of this
unpreserved issue is limited to plain error affecting substantial rights. Carines, supra, 460 Mich
763-764. Absent actual personal bias or prejudice against either a party or a party’s attorney, a
judge will not be disqualified. MCR 2.003(B)(1); Cain v Dep't of Corrections, 451 Mich 470,
495; 548 NW2d 210 (1996). A judge’s opinions that are formed on the basis of facts introduced
or events that occur during the course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible. Id. at 496. Further, judicial rulings alone
3
We note that, even if there was an evidentiary deficiency at defendant's preliminary
examination, it does not necessarily follow that his convictions must be reversed. In People v
Hall, 435 Mich 599, 601-603; 460 NW2d 520 (1990), our Supreme Court held that “an
evidentiary deficiency at the preliminary examination is not ground for vacating a subsequent
conviction where the defendant received a fair trial and was not otherwise prejudiced by the
error.” Id. at 601. Here, because defendant received a fair trial and has not demonstrated any
prejudice, reversal would not be required even had the evidence presented at the preliminary
examination been insufficient. Id.; People v Meadows, 175 Mich App 355, 359; 437 NW2d 405
(1989).
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rarely establish disqualifying bias or prejudice. Id. A party who challenges a judge for bias must
overcome a heavy presumption of judicial impartiality. Id. at 497.
We believe defendant has mischaracterized the record of the evidentiary hearing.
Defendant correctly states that the trial court stated, “the defendant does have the burden of proof
on this particular issue.” However, our review of the court’s complete ruling, in context, clearly
shows that the court had concluded that the prosecution had presented sufficient evidence of
consent and that the burden, sometimes referred to as the burden to go forward, was then on
defendant to rebut that evidence. As discussed in part I, the prosecution presented the testimony
of one of the arresting officers, who indicated that they had consent to enter the residence. The
selective excerpt relied on by defendant plainly concerns his claim that the defense had a witness
who would testify that the entry was not consensual. Surely, defendant had the burden of
producing witnesses to testify on his behalf to rebut the prosecution’s witnesses, and defendant’s
suggestion to the contrary is unsound. Therefore, the trial court did not improperly shift the
burden of proof to defendant to prove that the warrantless entry into his residence was
consensual, and it therefore follows that defendant has failed to meet his burden of establishing
actual bias on the part of the trial court. Cain, supra, 451 Mich 495; People v Gomez, 229 Mich
App 329, 331; 581 NW2d 289 (1998). Defendant has failed to demonstrate a plain error and,
thus, reversal is not warranted on this basis.
VII
Defendant also argues that the prosecutor engaged in misconduct by withholding
evidence, thereby violating the rule set forth in Brady v Maryland, 373 US 83; 83 S Ct 1194; 10
L Ed 2d 215 (1963), and by presenting false testimony to secure a conviction. We disagree.
Because defendant failed to timely object, this Court’s review of this unpreserved issue is limited
to plain error affecting substantial rights. Carines, supra, 460 Mich 763-764; Schutte, supra,
240 Mich App 720.
We reject defendant’s claim that the prosecutor violated Brady, supra, by delaying the
production of the results of scientific tests performed on the jeans he was wearing on the night of
the incident. A criminal defendant has a due process right of access to information possessed by
the prosecution. People v Lester, 232 Mich App 262, 281; 591 NW2d 267 (1998), citing Brady,
supra. “In order to establish a Brady violation, a defendant must prove: (1) that the state
possessed evidence favorable to the defendant; (2) that he did not possess the evidence nor could
he have obtained it himself with any reasonable diligence; (3) that the prosecution suppressed the
favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable
probability exists that the outcome of the proceedings would have been different.” Lester, supra
232 Mich App 281-282.
Defendant concedes that the prosecution provided the evidence approximately two weeks
before trial and that it was not withheld. More compelling, however, is that the scientific tests
revealed that defendant’s jeans had gunshot residue on both the left and right front pockets,
indicating that he had fired a gun and then placed his hands in his pocket. This evidence was not
favorable. Although defendant speculates and makes general observations concerning how the
belated receipt of the information may have affected his defense strategy and the outcome of his
case, he makes no specific claims regarding the actual effect of the late production of the test
results. Defendant has failed to establish a Brady violation.
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We also reject defendant’s contention that the prosecutor presented perjured testimony.
The prosecution has a constitutional duty to report the false testimony of its witnesses and may
not knowingly use false testimony to obtain a conviction. Lester, supra, 232 Mich App 276.
However, absent proof that the prosecution knew that the trial testimony was false, reversal is
unwarranted. Herndon, supra, 246 Mich App 417-418. Our review of the record reveals that
defendant has failed to demonstrate the prosecutor knowingly presented false testimony.
Defendant first argues that certain police witnesses were untruthful regarding the amount
of money recovered from the crime scene. To support this claim, defendant states that, at the
preliminary examination, an officer testified that approximately $35.50 was recovered from the
crime scene, but, during trial, a different officer testified that, in addition to the $35.50, there was
an unknown amount of money underneath a desk drawer in a back office. Contrary to
defendant’s claim, the officers’ testimony concerning the amount of money found at the scene,
being the area where the bodies were found, is consistent. Further, through defense counsel’s
cross-examination of the officer at trial, the jury was apprised that additional money was found
in a back room of the restaurant. In addition, defendant has not established a Brady violation,
where he has failed to persuasively argue that evidence of additional money found in a back
office of the restaurant underneath a desk is favorable, or that such a disclosure would have
changed the outcome of the proceedings.
Defendant also argues that the prosecutor presented the false testimony of an officer at a
pretrial hearing on the issue of probable cause for his arrest. Defendant claims that, contrary to
the testimony, the police could not have used information from defendant’s relative or the
codefendant’s girlfriend to establish probable cause, because both gave statements after
defendant was arrested. However, contrary to defendant’s claim, there is no indication that the
statements he offers on appeal represent the first time the police had spoken with either
individual. Instead there was evidence that defendant’s relative was arrested on the day before
defendant was arrested. In any event, given the fact that a restaurant employee had positively
identified the codefendant, by name, as being at the restaurant seconds before hearing gunshots,
it is not implausible that the police would have spoken with her before arresting the defendants.
There is no indication that the prosecution presented false testimony or even that the witnesses
were untruthful. Defendant has failed to demonstrate plain error and, therefore, reversal is not
warranted on this basis.
VIII
In his final claim on appeal, defendant rehashes several arguments, but he also appears to
argue that his statement should have been suppressed and his convictions vacated because he was
not timely arraigned.4 Because this issue was not raised and addressed below, it is reviewed for
plain error affecting substantial rights. Carines, supra, 460 Mich 763-764.
We conclude that the applicable case law renders defendant’s claim meritless. This Court
has held that, “[a]fter a person is arrested without a warrant, the arresting officer must bring that
4
Defendant was arrested at midnight on April 6, 1999, his statement was given at 1:30 p.m. on
April 7, 1999, and he was arraigned on April 9, 1999.
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person before a magistrate for arraignment ‘without unnecessary delay.’ ” People v Manning,
243 Mich App 615, 622; 624 NW2d 746 (2000), quoting MCL 764.26. However, Michigan law
does not require the automatic suppression of a confession given during a prearraignment delay.
Manning, supra at 638-641. Rather, a statement obtained in connection with a delay in a
defendant’s arraignment is inadmissible only if the statement was involuntary under the factors
listed in Cipriano, supra, 431 Mich 334; Manning, supra at 638, 643. As we discussed in part II
above, considering the totality of the circumstances, we cannot conclude that defendant’s
statement was induced by the prearraignment delay. Defendant has failed to demonstrate plain
error affecting substantial rights and, thus, this issue does not warrant reversal.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Kathleen Jansen
/s/ Pat M. Donofrio
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