PEOPLE OF MI V ANDREW OLIVE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 20, 2002
Plaintiff-Appellee,
v
No. 235923
Wayne Circuit Court
LC No. 00-013331
ANDREW OLIVE,
Defendant-Appellant.
Before: Kelly, P.J. and Jansen and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of two counts of first-degree
criminal sexual conduct (CSC 1), MCL 750.520b(1)(e) (weapon used). The trial court sentenced
defendant to two concurrent sentences of fifteen to thirty years’ imprisonment. We affirm.
I. Basic Facts
In May 1995, the victim was living at the Grandwood Hotel where, according to her, all
occupants were drug users. The victim, who sold crack cocaine in the Grandwood, routinely
overcharged people, used crack herself and admittedly stole from her clients.
On May 18, 1995, the victim encountered defendant, whom she knew as an acquaintance.
The victim sold defendant a nickel rock of crack for $5. A few minutes later, defendant returned
asking for more crack. The victim and defendant went to make the purchase and returned to the
hotel. The victim did not want anyone to see her passing the crack to defendant, so they went
into defendant’s hotel room. On her way out of the room, the victim took a hit of crack from her
pipe. After making a few more transactions, the victim went back to her room where she and her
boyfriend consumed alcohol. Defendant, accompanied by a prostitute, came to the victim’s door
asking for more crack. The victim, who knew the prostitute and thought she was a “snitch,”
stated that she did not sell drugs.
Awhile later, defendant called the victim on the telephone. The victim met defendant in
the lobby and they went around the corner to buy some more crack. After buying the crack,
defendant asked the victim to come back to his room so he could use her stem to smoke the
crack. As the victim entered the room, defendant pushed her causing her head to hit the sink. As
she tried to stand up, defendant put a screwdriver to her stomach saying, “Sit down and shut up.”
He instructed her to light the crack and then he put a knife to her side saying, “I’m going to f---1-
you all night.” He then ordered her to remove her pants and engaged in vaginal intercourse with
her two separate times. After defendant fell asleep, the victim ran into the bathroom. However,
defendant got up and tried to pull the door open and “stick [her].” The victim shouted that the
police were coming and defendant stopped pulling on the door. When the victim opened the
door, she saw defendant in the corner going through her pocket book. She grabbed her clothes
and ran out.
After escaping to the lobby, the victim asked the front desk clerk to call the police. When
the police arrived, she told them that defendant raped and tried to kill her. The victim also went
to the hospital. At trial, the victim described her examination at the hospital and her meeting
with a rape counselor. Later, Highland Park police called her and asked her to come to the
station. She went to the station and made a written statement.
At trial, the victim testified that she used crack for thirteen years, but no longer uses the
drug. Although her previous attempts had failed, the victim began a program four months before
trial and believed that it was working. The victim testified extensively about the changes she
made in her life and the spiritual effects of these changes.
Frank Ross, a Highland Park public safety officer, testified that on May 18, 1995, he was
instructed to pick up a rape kit from Henry Ford Hospital. The rape kit was under the names of
defendant and the victim. Melinda Jackson, a forensic scientist with the Michigan State Police,
testified that her laboratory received a rape kit in May 1995 under defendant’s and the victim’s
names. The laboratory report indicated that sperm was detected on the vaginal and rectal smears.
Tests were not performed to determine the semen source.
Jimmie Wright, a Highland Park public safety officer testified that on May 18, 1995, he
was called to the Grandwood at 5:20 a.m. to take a rape report. After Wright spoke with the
victim, she was transported by EMS. When Wright went to the apartment where the incident
occurred, he did not locate any weapons and did not gather any witnesses. He approached
defendant in the hallway; defendant did not run. Officer David Bragg testified that on May 18,
1995, he and his partner received instruction to arrest defendant at the Grandwood. They made
the arrest and placed defendant in a jail cell.
Charles Hackney testified that he released defendant after three days because they were
unable to locate the victim to obtain a statement. Approximately one week after the incident,
they located the victim and obtained a statement. Based on the statement, they obtained a
warrant. The warrant was entered into the Law Enforcement Information Network (LEIN).
Defendant was not arrested until sometime recently before trial.
II. Prosecutorial Misconduct
A. Standard of Review and Applicable Law
Allegations of prosecutorial misconduct are reviewed de novo. People v Pfaffle, 246
Mich App 282, 288; 632 NW2d 162 (2001). Defendant complains of several instances of
prosecutorial misconduct of which some are preserved and some are not. In order to avoid
forfeiture of an unpreserved claim of prosecutorial misconduct, the defendant must demonstrate
plain error that affected the defendant’s substantial rights. People v Schutte, 240 Mich App 713,
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720; 613 NW2d 370 (2000), citing People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
If such an error is found, then this Court should reverse only if the defendant is actually innocent
or the error seriously affected the fairness, integrity or public reputation of judicial proceedings.
Id. Preserved issues of prosecutorial misconduct are reviewed by this Court by evaluation of the
prosecutor's comments in context to determine if the defendant was denied a fair and impartial
trial. People v Truong (After Remand), 218 Mich App 325, 336; 553 NW2d 692 (1996).
Claims of “prosecutorial misconduct are decided case by case with the reviewing court
examining the pertinent portion of the record and evaluating the prosecutor’s remarks in
context.” People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999). Prosecutorial
comments must be read as a whole and evaluated in light of the arguments and the relationship
they bear to the evidence admitted. Schutte, supra at 721.
B. Improper Bolstering of Testimony
Defendant first argues that the prosecutor improperly bolstered the victim’s credibility
with her testimony that she had stopped using drugs and was engaged in a rehabilitation
program. The testimony of which defendant complains reads:
Q. And in the past five years are you still using crack cocaine?
A. No, I’m not.
Q. Have you tried to stop? How would you have stopped?
A. Well, I tried to stop before, and it didn’t never [sic] work, but this time I
stopped. I have been clean four months now. I had a spiritual awakening. It
[sic] like I never used drugs before. I’m a different person today.
Q. Between ‘95 and now you said you tried to stop before?
A. Yes.
Q. How many times do you think you tried to stop?
A. A hundred times.
Q. And how would you go about trying to stop? What would you do?
A. I go into rehabilitation or just try to do it myself. Just it didn’t never [sic]
work.
Q. Why would it be important that you try to stop?
A. I didn’t like the way I was living. I didn’t like my life. I didn’t like myself.
Q. This time you think it’s working?
A. I know it’s working.
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[DEFENSE COUNSEL]: Object to relevancy, your Honor.
[PROSECUTOR]: I think it goes to her ability to testify how [sic], your
Honor.
THE COURT: I agree. I’ll overrule the objection.
Q. (By [the prosecutor] continuing) You say you know it’s working?
A. Yes.
Q. Are you in some kind of program, or what are you doing?
A. I am in a program.
Q. What does that program involve?
A. Teaching. It’s learning different things because when you have used drugs so
long, you be out of everything. You have to start all over again to learn how
to live different. You don’t know things, different things. It’s great. It’s
great. It’s a lot of steps you have to take.
Q. How long has this process been going on now this time?
A. Four months.
Q. So did you enroll in that program? Is it a live-in? Is it a live-out?
A. I enrolled in a program.
Q. Did you do it on your own?
A. Yes. I just walked away and was just crying to God, praying, and I just
surrendered and I went downtown and everybody just rushed me, helping me.
Just I was just like I am crying, “help me, anybody” you know.
Q. So it has been four months?
A. It has been four months. Yes.
To begin with, it should be noted that defendant did not object on the basis that this was
improper bolstering, but more generally, that the evidence was not relevant. Relevant evidence
is “evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” MRE 401. The prosecution argued that the testimony went to the victim’s “ability to
testify.” This Court is not clear on what the prosecutor meant by “ability.” However, it appears
that she meant to show that the victim was not under the influence of drugs while on the stand.
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This appears to go to the question of competence which is a proper inquiry pursuant to MRE
601.1
To the extent that the testimony exceeded relevant inquiry, we must determine if
defendant was denied a fair and impartial trial by the testimony. Truong, supra at 336. We
conclude that the victim’s testimony did not deny defendant a fair and impartial trial. Although
defendant argues that the case was a credibility contest between defendant and the victim,
defendant did not testify. Even without the complained of testimony, the evidence presented at
trial supported a finding of defendant’s guilt. The victim described the incident in detail and
testified that she immediately called the police after the incident. Police testimony corroborated
that that they were called to the scene. The victim also testified that she went to the hospital and
underwent an exam. Lab technicians confirmed that they tested samples taken from a rape kit
with defendant’s and the victim’s name on it. The testing found semen in the victim’s vagina.
Although the victim’s credibility was called into question on cross-examination, questions of
credibility are left to the trier of fact to resolve. People v Avant, 235 Mich App 499, 506; 597
NW2d 864 (1999). We find that this case was not as even-sided as defendant suggests that it
was merely a credibility contest. In fact, defendant did not present any witnesses or proffer any
evidence. Therefore, even if the victim’s testimony was improper bolstering, defendant was not
denied a fair and impartial trial.
C. Improper Vouching for Credibility
Defendant next argues that the prosecutor improperly vouched for the victim’s credibility
in closing argument. Because defendant did not object, to avoid forfeiture, he must demonstrate
plain error that affected his substantial rights. Schutte, supra at 720. While the prosecutor may
comment on the evidence and all reasonable inferences therefrom, it is improper to vouch for the
credibility of a witness. Id. at 721; People v Bahoda, 448 Mich 261, 276; 531 NW2d 659
(1995). However, a prosecutor may argue a witness’ credibility based on the facts. People v
Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). In particular, defendant complains
of the prosecutor's remarks in rebuttal:
She hopes for better things for herself. What is her motive to now relive what
happened five years ago to just make up something about something five years
ago if it didn’t happen? She’s telling you the truth when she tells you the
experience she had.
We find that the phrase, “She’s telling you the truth when she tells you the experience she
had” was an argument based on the evidence that the victim was truthful about being a drug
dealer/user and thus was not trying to cover up other motives that she may have had for pursuing
defendant’s conviction. Therefore, this comment was not improper. Additionally, this rebuttal
argument was responsive to defense counsel’s closing argument that the victim sought
defendant’s prosecution because she was scorned or hustled by him. Because defendant has
failed to show plain error, this claim is forfeited.
1
However, we note that, pursuant to MRE 601, questions regarding competency are posed by
the trial court.
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D. Improper Denigration of Defense
Defendant next argues that the prosecutor improperly denigrated the defense. Because
defendant did not object, to avoid forfeiture, he must demonstrate plain error that affected his
substantial rights. Schutte, supra at 720. Although a prosecutor may not denigrate defense
counsel, People v Kennebrew, 220 Mich App 601, 607; 560 NW2d 354 (1996), a prosecutor may
denigrate the defense if it is inconsistent with the evidence presented at trial, see People v Ullah,
216 Mich App 669, 678; 550 NW2d 568 (1996). The portion of rebuttal argument that defendant
objects to is as follows:
Oh, we couldn’t hear about impeachment. Mr. Rutledge told you. He told you
that in opening statement. He told you that. Now you’re not going to be able to
believe her story because she said other things before.
What did she say different. What’s this Mr. Rutledge pointed out that she
said different before?
I told the officer before I smoked a piece off of two rocks. And in front of
you I said I smoked a piece off one rock. Oh, my gosh that’s scathing. Walk him
out the door. That’s just like her, all unbelievable.
He also points out in her transcript. This is the big difference in her
testimony. When you’re talking about were you treated, when she said she had a
little scratch from the screw driver [sic] in her stomach, were you stuck? Where
he stuck the knife in your side did not penetrate the skin; correct? No. And you
were not treated for any wound to your stomach? No. He sits down.
Let’s read just a little bit further. Okay.
“On your side? No. All right. They wiped that little scar. They wiped it
and cleaned it.” That’s what she told you here on the stand that they put a little
alcohol on it. They wiped it and cleaned it. That was her idea of being treated.
So is that so horrendous?
Now we’re going to say she is a liar just like that? That’s silly. Those are
the big impeachment issues. Those are the big inconsistencies in her testimony
here today from what she said before.
Defendant specifically argues that with this rebuttal, the prosecutor suggested that defense
counsel was trying to mislead the jury. Defendant argues “the prosecutor unquestionably
denigrated defense counsel personally by sarcastically mocking not only his theory and
argument, but also his demeanor.”
The prosecutor may not question defense counsel's veracity. People v Wise, 134 Mich
App 82, 101-102; 351 NW2d 255 (1984). When the prosecutor argues that defense counsel is
intentionally trying to mislead the jury, it is tantamount to arguing that counsel does not believe
his own client. Id. This type of argument undermines the defendant's presumption of innocence
and impermissibly shifts the focus from the evidence itself to defense counsel's personality. Id.
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Prosecutors cannot make statements of fact unsupported by the evidence; however, a prosecutor
need not confine argument to the “blandest of all possible terms,” but has wide latitude and
remains free to argue the evidence and all reasonable inferences arising from it as they relate to
the theory of the case. People v Aldrich, 246 Mich App 101, 112; 631 NW2d 67 (2001), citing
People v Marji, 180 Mich App 525, 538; 447 NW2d 835 (1989).
Viewed in context, the prosecutor did not argue that defense counsel lied or was trying to
intentionally mislead the jury concerning the facts. The prosecutor merely responded to defense
counsel's arguments and the defense theory of the case. The prosecutor did not personally attack
defense counsel or shift the jury's focus from the evidence to defense counsel's personality.
People v Phillips, 217 Mich App 489, 497-498; 552 NW2 487 (1996). Because defendant failed
to show plain error, this claim is forfeited.
E. Improper Appeal to Jury’s Sympathy
Defendant finally argues that the prosecutor improperly appealed to the jury’s sympathy
for the victim. Because defendant did not object, to avoid forfeiture, he must demonstrate plain
error that affected his substantial rights. Schutte, supra at 720. Although a prosecutor may argue
that a witness should be believed, he may not appeal to the jury to sympathize with the victim.
People v Watson, 245 Mich App 572, 591; 629 NW2d 411 (2001); People v Delassandro, 165
Mich App 569, 581; 419 NW2d 609 (1988); Wise, supra at 104.
Specifically, defendant argues on appeal, “Because the prosecutor’s case alleged an
humiliating rape, jurors were likely to feel at least somewhat sympathetic toward this otherwise
tainted complainant. Instead of mitigating this situation, the prosecutor exacerbated it by
appealing to the jurors to sympathize with the complainant.” The portion of rebuttal argument
that defendant complains of is as follows:
She’s exposing herself to admitting to illegality and illegal behavior. Nonetheless
she stands up, and she admitted or she shows, I have been raped. I’m a victim.
Do something five years later because nothing was ever done on that warrant. It’s
just out there. Nobody makes any effort to do anything.
She still comes in, and she says I was the victim. I have been raped. Give
me a voice. Somebody hear me and do something about it. And you got to
decide what is her motive to lie.
***
I want to read something to you. The opposite of love is not hate. It’s
indifference. The opposite of art is not ugliness. It’s indifference. The opposite
of faith is not heresy. It’s indifference, and the opposite of life is not death, it’s
indifference.
That was Eli Wessell (sic). He’s known for writing about the Holocaust
and the horrors of the Holocaust. He has been called a voice for the voiceless.
That hate is indifference. Ugliness is indifference. Heresy is indifference, and
death is indifference.
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Give her a voice. Be the voice for the voiceless is what I’m asking you to
do. Don’t ignore her cry. Don’t ignore what happened to her just because she’s
one of those people, just because other people who use crack sell their bodies for
sex, just because that’s the nature of those people.
Listen to what she has to say and evaluate what she has to say. I’m asking
you to be her voice and find this man guilty.
This rebuttal argument was proper in response to defense counsel’s closing argument that
included suggestions that because the victim was a drug user and possibly a prostitute, that she
had a motive for bringing charges against defendant and was not really a rape victim. Defense
counsel argued:
[W]hen you’re dealing with people in this class, you have to use your common
sense in determining was it rape? Was it consensual, or were the allegations of
some vindictive nature?
***
The evidence. “Hell hath no fury like a woman’s scorn.” What could be a
reasonable inference to be drawn from the evidence as to why she came in and
told you a false story? Maybe did the hustler get hustled?
***
And more pertinent we’re dealing with woman who admits that every woman she
knows addicted to crack cocaine will trade sex for drugs but her. An if you
believe that, I got some property on Belle Isle I would like to sell you.
The prosecutor’s closing argument was also proper based on the evidence that the victim
was a drug dealer/user and her testimony that she was not a prostitute. The evidence also
showed that the warrant was outstanding for five years before charges were brought against
defendant. Additionally, as indicated above, emotional language may be used during closing
argument and is an important weapon in counsel’s forensic arsenal. Ullah, supra at 679.
Because defendant failed to show plain error, this claim is forfeited.
III. Ineffective Assistance of Counsel
A. Standard of Review and Applicable Law
This Court reviews de novo claims alleging ineffective assistance of counsel. People v
Toma, 462 Mich 281, 310; 613 NW2d 694 (2000). Because defendant failed to request an
evidentiary hearing under People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973), we
review defendant's claim of ineffective assistance of counsel only to the extent that defense
counsel's mistakes are apparent on the record. People v Harris, 201 Mich App 147, 154; 505
NW2d 889 (1993).
A claim of ineffective assistance of counsel must be examined under Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984) and People v Pickens, 446
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Mich 298, 309-327; 521 NW2d 797 (1994). A defendant must satisfy a two-pronged test to
establish an ineffective assistance of counsel claim:
First, the defendant must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable. [Strickland, supra at
687.]
Effective assistance of counsel is presumed and defendant bears a heavy burden to prove
otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). Trial counsel is not
ineffective for failing to advocate a meritless position. People v Snider, 239 Mich App 393, 424425; 608 NW2d 502 (2000).
B. Analysis
In this case, defendant argues that he was denied effective assistance of counsel because
defense counsel failed to challenge incorrect sentencing guidelines offense variables, which
resulted in defendant being sentenced based on inaccurate information. Specifically, defendant
argues that OV 7 and OV 12 should have been scored at zero points instead of five and twentyfive respectively.
The Supreme Court’s sentencing guidelines apply to defendant’s sentence because the
offense was committed before January 1, 1999. MCL 769.34(1); People v Reynolds, 240 Mich
App 250, 254; 611 NW2d 316 (2000). A sentencing court has discretion in determining the
number of points to be scored, provided that evidence of record adequately supports a particular
score. People v Derbeck, 202 Mich App 443, 449; 509 NW2d 534 (1993). "Scoring decisions
for which there is any evidence in support will be upheld." People v Elliott, 215 Mich App 259,
260; 544 NW2d 748 (1996).
With respect to OV 7, five points are appropriate if the “Offender exploits the victim
through a difference in size/strength, or because the victim was intoxicated, under the influence
of drugs, asleep, or unconscious.” In this case, there was evidence that the victim had used crack
and alcohol prior to and near the time of the rape. Defendant argues that this does not show that
she was “under the influence” at the time of the rape. However, it is a reasonable inference
based on the evidence that she was. Additionally, defendant makes much of the testimony that
the victim was six feet tall weighing approximately 180 pounds while defendant was merely five
feet nine inches tall weighing approximately 160 pounds. However, it is not unreasonable to
conclude that defendant, a man, would be able to overpower a woman even if she was somewhat
larger than him. In fact, the evidence in this case indicates that defendant was able to overpower
the victim when he pushed her onto the ground causing her to hit her head. Therefore, we find
that the trial court’s scoring of OV 7 is supported by the evidence.
With respect to OV 12, defendant argues that zero points should have been assessed
because the penetrations serving as a basis for the convictions should not be counted. The
sentencing guidelines indicate, “In CSC 1st and CSC 3rd do not score the one penetration that
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forms the basis of the conviction offense.” The evidence indicates that defendant penetrated the
victim twice. Defendant was convicted to two counts of CSC 1. Therefore, it appears that the
trial court improperly scored twenty-five points for OV 12.
However, a successful challenge to this score would not have had an effect on
defendant’s sentencing range. Even with OV 12 being scored at zero points, the total offense
variable would be fifty. The prior record score is sixty. These combined score still put
defendant’s sentence within the 240 to 480 months sentencing guidelines range.
We note that the trial court sentenced defendant well below the sentencing guidelines
range by imposing a minimum sentence of 180 months (fifteen years). The trial court stated,
“The sentencing guidelines are very high in this particular matter. I do take that into account. I
also take into account [defendant’s age].” Defendant urges us to consider that if the offense
variable scores had been challenged, the trial court may have departed from the guidelines range
even further. However, there is no basis for this conjecture. Because the proceedings would not
have been different but for defense counsel’s failure to challenge the trial court’s scoring of the
offense variables, we find that defendant was not denied effective assistance of counsel.
Affirmed.
/s/ Judge Kirsten Frank Kelly
/s/ Judge Kathleen Jansen
/s/ Judge Pat M. Donofrio
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