PEOPLE OF MI V JAMES EDWARD WHITE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 13, 2004
Plaintiff-Appellee,
v
No. 246713
Wayne Circuit Court
LC No. 02-002289-01
JAMES EDWARD WHITE,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Jansen and Talbot, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions for carrying a concealed
weapon (CCW), MCL 750.227, possession of less than twenty-five grams of a controlled
substance (heroin), MCL 333.7403(2)(a)(v), and possession of a firearm during the commission
of a felony (felony-firearm), MCL 750.227b. We affirm.
Defendant's first issue on appeal is that reversal is required because he was denied his
right to testify. Alternatively, defendant claims reversal is required because he was denied the
effective assistance of counsel when he was talked out of testifying or misled about not
testifying. We disagree with both contentions.
The constitutional right to testify on one's own behalf at a criminal trial is essential to due
process of law. People v Solomon, 220 Mich App 527, 533-537; 560 NW2d 651 (1996).
Defendant claims that he clearly indicated that he wanted to testify and that he was denied the
right to testify on his own behalf without a valid or complete waiver of his right to testify made
on the record. This claim is without merit.
At the close of the prosecution’s case, the following colloquial occurred on the record:
MR. LANGFORD: . . . . I have explained to [defendant] that he has the
absolute Constitutional right to testify in his own behalf. Is this correct, sir?
MR. WHITE: Yes.
MR. LANGFORD: Also explained . . . if he does take the stand, that his
testimony will be judged by the standards of anybody else. Right, sir?
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MR. WHITE: Yes.
MR. LANGFORD: Okay, but that he can also can say [sic], I do not want to
take the stand; and that if elects not to take the stand, no adverse inference can
be drawn from it. In fact, you will give an instruction saying you cannot make
any negative assumptions. All explained to you, sir?
MR. WHITE: Uh-huh.
MR. LANGFORD:
And are you comfortable with the explanations?
MR. WHITE: Yes.
MR. LANGFORD:
stand.
And you’ve indicated to me that you do not wish to take the
MR. WHITE: Yes.
Then, upon hearing the verdict, defendant informed his trial counsel and the trial court that he
wanted to take the stand to tell his side of the story. The trial court informed defendant it was an
issue he could take up on appeal.
Defense counsel, on the record, expressly and unequivocally informed defendant that he
could testify on his own behalf and defendant affirmatively declined to exercise his right to
testify. Defendant did not express that he wanted to testify until after he heard the jury’s verdict.
A criminal defendant may forfeit a right by failing to timely assert it, but a forfeited right may
still be reviewed for plain error, while the intentional relinquishment of a known right constitutes
a waiver that extinguishes the error. People v Carter, 462 Mich 206, 215-216; 612 NW2d 144
(2000). Any error was extinguished as defendant intentionally relinquished his right to testify on
his behalf. Nonetheless, even if there was no waiver, this Court has held that there is no
requirement in Michigan that there be an on-the-record waiver of a defendant's right to testify.
People v Harris, 190 Mich App 652, 661; 476 NW2d 767 (1991).1 Although the trial court did
not inquire, when a defendant is represented by counsel a trial court has no duty to inquire into
the defendant's waiver of the right to testify. People v Bell, 209 Mich App 273, 277; 530 NW2d
167 (1995). Accordingly, even if there was no waiver of defendant's right to testify on the
record, which there was, the trial court did not err.
With regard to defendant's claims of ineffective assistance of counsel, our review is
limited to the facts apparent on the record. People v Ginther, 390 Mich 436, 442-443; 212
NW2d 922 (1973); People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002). Effective
assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise.
1
In Harris, supra, the defendant claimed that she was denied a fair trial because she was denied
the right to testify on her own behalf and there was no waiver on the record. Harris, supra at
661. This Court held that the trial court had no duty to advise her of the right, nor was it required
to determine whether she made a knowing and intelligent waiver of the right. Id. at 661-662.
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People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002). "Whether a person has been
denied effective assistance of counsel is a mixed question of fact and constitutional law." Id. at
579. The court must first find the facts and then decide whether those facts constitute a violation
of the defendant's constitutional right to effective assistance of counsel. Id. The trial court's
factual findings are reviewed for clear error, while its constitutional determinations are reviewed
de novo. Id.
Generally, to establish ineffective assistance of counsel, a defendant must show: (1) that
counsel's performance was below an objective standard of reasonableness under prevailing
professional norms; and (2) that there is a reasonable probability that, but for counsel's error, the
result of the proceedings would have been different. Bell v Cone, 535 US 685, 695; 122 S Ct
1843; 152 L Ed 2d 914 (2002); People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).
There is nothing on the record supporting that defendant was talked out of testifying or
was misled about testifying by his trial counsel. To the contrary, on the record trial counsel
informed defendant regarding his right to testify and with regard to how the jury would be
instructed if he decided not to testify. Even if it was defense counsel’s decision, counsel's
decision not to put defendant on the stand is presumed to be a matter of trial strategy for which
this Court will not substitute its judgment. People v Mitchell, 454 Mich 145, 163; 560 NW2d
600 (1997); People v Avant, 235 Mich App 499, 508; 597 NW2d 864 (1999). This Court will
not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess
counsel’s competence with the benefit of hindsight. People v Rice (On Remand), 235 Mich App
429, 445; 597 NW2d 843 (1999). Therefore, after a review of the record, we do not believe
defendant has overcome the presumption that he received effective assistance of counsel.
Furthermore, defendant has not shown there is a reasonable probability that the result of the
proceedings would have been different if he had testified. Bell, supra at 695; Toma, supra at
302. Based on the record, upon a de novo review of this constitutional issue, defendant has not
established the deficient performance and prejudice required to succeed on a claim of ineffective
assistance of counsel. See LeBlanc, supra at 579.
Defendant’s second issue on appeal is that his convictions should be reversed because the
prosecution failed to present sufficient evidence in support of the charged offense. In the
alternative, defendant argues that the convictions should be reversed because the verdict was
against the great weight of the evidence and/or manifestly unjust. We disagree.
In reviewing the sufficiency of the evidence, we must view the evidence de novo in the
light most favorable to the prosecutor and determine whether a rational trier of fact could find
that the essential elements of the crime were proven beyond a reasonable doubt. People v
Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999); People v Fennell, 260 Mich App 261, 270;
677 NW2d 66 (2004). We do not interfere with the jury’s role of determining the weight of
evidence or the credibility of witnesses. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748
(1992), amended 441 Mich 1201 (1992); People v Fletcher, ___ Mich App ___; ___ NW2d ___
(Docket No. 229092, issued February 10, 2004) slip op p 15. It is for the trier of fact rather than
this Court to determine what inferences can be fairly drawn from the evidence and to determine
the weight to be accorded to the inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d
158 (2002). Circumstantial evidence and the reasonable inferences that arise from the evidence
can constitute satisfactory proof of the elements of the crime. People v Carines, 460 Mich 750,
757; 597 NW2d 130 (1999); Fennell, supra.
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With regard to the CCW conviction, defendant contends that the evidence was
insufficient because there was no scientific evidence to establish that the gun had his fingerprints
on it. The elements of CCW require that: (1) the defendant carried a gun and (2) the gun was
concealed on or about his person. MCL 750.227; People v Davenport, 89 Mich App 678, 682;
282 NW2d 179 (1979). Detroit Police Officer Sean Harris testified that he saw the butt of a
handgun protruding out of defendant’s waistband. Detroit Police Officer Don Eastman testified
that he retrieved a handgun from underneath defendant’s shirt and waistband. Thus, there was
testimony that defendant carried a gun and that the gun was concealed under his waistband and
clothing. Upon a review de novo, we find, reviewing the testimony of Officers Harris and
Eastman in the light most favorable to the prosecution, a rational trier of fact could find that the
essential elements of CCW were proven beyond a reasonable doubt. It is not necessary to
fingerprint a gun that is retrieved from defendant’s person, and the lack of fingerprint evidence is
goes to the credibility, which we leave to the trier of fact.
With regard to the possession of less than twenty-five grams of heroin conviction,
defendant argues that that the evidence presented was insufficient because there was no evidence
that he possessed the heroin that was found outside the window. The elements of possession of
less than twenty-five grams of heroin are: (1) the defendant possessed the heroin and was not
authorized to possess the heroin, (2) the defendant knew he possessed the heroin, and (3) the
heroin was in a mixture weighing less than twenty-five grams. See Wolfe, supra at 516-517.
Officer Harris testified that when the police arrived to execute a search warrant he observed
defendant throw a plastic baggie out the window, and that, from his experience, he expected the
baggie to contain narcotics. Detroit Police Officer Jessica Jones testified that she observed
defendant throw a plastic baggie out the window, and that she exited and recovered the baggie on
the pavement under the window. Officer Jones further testified that the baggie contained folded
paper packets of what she suspected was heroin. It was stipulated that Tiffany McKay, an expert
in chemical analysis, would testify that she examined the contents of two paper packets found in
the recovered baggie and that the material found contained heroin and weighed .09 grams.
The testimony of Officers Harris and Jones and the stipulation that the bag contained a
heroin mixture supports that defendant possessed heroin without authorization. And, the
stipulation regarding what McKay’s testimony would have been supports that the paper taken
from the baggies contained a heroin mixture that weighed .09 grams, which is less than twentyfive grams. Defendant’s knowledge of his possession can be inferred from the facts and
circumstances; i.e. the fact that he threw the baggie out the window when the police entered. See
People v Safiedine, 163 Mich App 25, 29; 414 NW2d 143 (1987). Because of the difficulty of
proving an actor’s state of mind, minimal circumstantial evidence is sufficient, Fennell, supra at
270-271. We find, upon a review de novo, the evidence when viewed in a light most favorable
to the prosecution is sufficient in that a rational trier of fact could find that the essential elements
of possession of less than twenty-five grams of heroin were proven beyond a reasonable doubt.
Lastly, the elements of felony-firearm are that defendant possessed a firearm during the
commission or attempt to commit a felony. People v Davis, 216 Mich App 47, 53; 549 NW2d 1,
(1996). For the above stated reasons, there is sufficient evidence, when viewed in a light most
favorable to the prosecution, that defendant possessed a firearm while in the possession of less
than twenty-five grams of heroin (a felony).
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In the alternative, defendant contends that his convictions were against the great weight
of the evidence, but defendant has not properly preserved his great weight of the evidence
argument. An objection going to the weight of the evidence in a jury trial can be raised only by a
motion for new trial before the trial court. People v Bradshaw, 165 Mich App 562, 565; 419
NW2d 33 (1988). Failure to raise the issue by the appropriate motion forfeits the issue on
appeal, People v Winters, 225 Mich App 718, 729; 571 NW2d 764 (1997), and limits review to
plain error which affected the defendant’s substantial rights, People v Musser, 259 Mich App
215, 218; 673 NW2d 800 (2003). Defendant has failed to present any plain error that affected
his substantial rights. Carines, supra at 763. Defendant only raises issues of credibility, which
are left to the trier of fact. See People v Lemmon, 456 Mich 625, 642-643; 576 NW2d 129
(1998). Thus, defendant’s argument that his convictions are against the great weight of the
evidence also fails.2
Defendant’s final issue on appeal is that he was denied a fair trial when the prosecutor
improperly made comments not supported by the evidence and by improperly offering her
personal opinion. We agree that the prosecution made an improper comments during rebuttal
argument. But we disagree that defendant was denied a fair trial.
Defendant did not object to the challenged comments. Unpreserved issues are reviewed
for plain error that affected substantial rights. Rodriguez, supra at 32. Reversal is warranted
only when a plain error resulted in the conviction of an actually innocent defendant or seriously
affected the fairness, integrity or public reputation of judicial proceedings. People v Schutte, 240
Mich App 713, 720; 613 NW2d 370 (2000). Comporting with this standard, appellate review of
allegedly improper conduct is precluded if the defendant fails to timely and specifically object
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 Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994); People
v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003). A miscarriage of justice will not be
found if the prejudicial effect of the prosecutor’s comments could have been cured by a timely
instruction. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). Thus, if defense
counsel fails to object, review is foreclosed unless the prejudicial effect of the remark was so
great that it could not have been cured by an appropriate instruction.
The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. Watson, supra at 586. A defendant’s opportunity for a fair trial can be
jeopardized when the prosecutor interjects issues broader than the guilt or innocence of the
accused. Rice, supra at 438. Prosecutorial comments must be read as a whole and evaluated in
light of defense arguments and the relationship they bear to the evidence admitted at trial.
Schutte, supra at 721. A prosecutor may not make a statement of fact to the jury which is
unsupported by the evidence, Stanaway, supra at 686; Schutte, supra at 721, but she is free to
argue the evidence and all reasonable inferences arising from it as they relate to her theory of the
2
Furthermore, the verdict is not against the great weight of the evidence. The evidence does not
clearly preponderate so heavily against the verdict that a miscarriage of justice would result if the
verdict was allowed to stand. Lemmon, supra; People v Gadomski, 232 Mich App 24, 28; 592
NW2d 75 (1998).
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case, People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995); Schutte, supra. A prosecutor
may not vouch for the credibility of a witness to the effect that she has some special knowledge
that the witness is testifying truthfully. Bahoda, supra at 276; People v Knapp, 244 Mich App
361, 382; 624 NW2d 227 (2001). And, a prosecutor may not ask the jury to convict a defendant
on the basis of the prosecutor’s personal knowledge. People v Ignofo, 315 Mich 626, 631-636;
24 NW2d 514 (1946).
During the prosecutor’s rebuttal argument she made the following statement to the jury:
I lived in Cass Corridor for 4 years, all through law school and after. I never
tripped over a baggie of heroin. It doesn’t just sit out there. It was dropped by
defendant.
Defendant argues that this was improper argument by the prosecution. The prosecution contends
that it was in response to defense counsel’s contention that the drugs found were not defendant’s,
and that the prosecutor was properly arguing reasonable inferences arising from the evidence.
We agree with defendant that the challenged statements were improper.
Although the prosecutor can respond to issues raised by defense counsel in closing
argument, it remains improper to argue on the basis of the prosecutor’s personal knowledge and
for the prosecutor to indicate that she has special knowledge with regard to the area where the
heroin was found. Therefore, plain error exists. But we find that this error did not affect
defendant’s substantial rights; i.e., it did not affect the outcome of the proceedings, nor did the
error result in the conviction of an actually innocent defendant or seriously affect the fairness,
integrity or public reputation of judicial proceedings. See Carines, supra at 763-764. The
evidence against defendant was overwhelming, and the statements made by the prosecution
during rebuttal argument, when reviewing the entire case, did not affect the outcome of the
proceedings. Moreover, any prejudice caused by the prosecutor’s comments regarding her
knowledge of Cass Corridor could have been cured by a curative instruction if defense counsel
had objected. See Stanaway, supra at 687; Watson, supra at 586. In addition, any error was
cured by the trial court's instructions to the jury to decide the case solely on the evidence, and
further directing the jury that the statements of counsel are not evidence. Prior to opening
statements and during jury instructions, the trial court instructed the jury that the statements and
arguments of the attorneys were not evidence, and that the jury was to only consider evidence in
coming to its verdict.
Although there was plain error, defendant has not demonstrated that his substantial rights
were affected. In light of the evidence presented against defendant, the remarks by the
prosecutor, though improper, were not critical to a determination of defendant's guilt or
innocence and could have been cured by a curative instruction. Further, the trial court’s
instructing the jury that the attorneys’ statements and arguments were not to be considered
evidence cured any prejudice. Accordingly, this unpreserved issue does not require reversal.
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Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Kathleen Jansen
/s/ Michael J. Talbot
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