PEOPLE OF MI V SAMUEL BERNARD PROFIT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 20, 2004
Plaintiff-Appellee,
v
No. 246412
Wayne Circuit Court
LC No. 02-001890
SAMUEL BERNARD PROFIT,
Defendant-Appellant.
Before: Saad, P.J., and Sawyer and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of first-degree premeditated
murder, MCL 750.316, felon in possession of a firearm, MCL 750.224f, and possession of a
firearm during the commission of a felony, MCL 750.227b. Defendant was sentenced to
mandatory life imprisonment for the first-degree premeditated murder conviction, thirty-eight
months to five years’ imprisonment for the felon in possession of a firearm conviction, and to a
consecutive sentence of two years’ imprisonment for the felony-firearm conviction. We affirm.
Defendant’s first issue on appeal is whether sufficient evidence existed for a reasonable
jury to convict defendant of first-degree premeditated murder. This Court reviews a claim of
insufficient evidence de novo. People v Mayhew, 236 Mich App 112, 124; 600 NW2d 370
(1999). This Court “must consider the evidence presented by the prosecution to the time the
motion is made and in a light most favorable to the prosecution, and determine whether a rational
trier of fact could have found that the essential elements of the crime were proved beyond a
reasonable doubt.” People v Riley, 468 Mich 135, 139; 659 NW2d 611 (2003). Defendant
argues that testimony of the witnesses was inconsistent and did not support a determination of
premeditation. Specifically, defendant contends that the jury relied upon testimony that
defendant said, “hey, my man, watch this,” as evidence of premeditation. Defendant argues that
this testimony is inconsistent from the same witness’ statement to police where it was indicated
defendant only said, “hey, my man.” In addition, defendant asserts another witness, at trial,
denied his statement to police regarding having observed the victim reach toward his ankles,
where the victim had previously been observed carrying a handgun, prior to defendant shooting.
To demonstrate premeditation, “[t]he interval between the initial thought and ultimate
action should be long enough to afford a reasonable person time to take a ‘second look.’ ”
People v Gonzalez, 468 Mich 636, 641; 664 NW2d 159 (2003). Defendant was seen to remove a
gun from his pocket and was the only person observed holding a gun at the time of the shooting.
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Five spent shell casings were recovered from the lawn of defendant’s home and the victim died
of multiple gunshot wounds. Two witnesses testified they observed the victim bent over and
moving away from defendant, when defendant aimed at the victim and fired an additional shot.
Any of these time periods are sufficient to infer a “second look” or time for premeditation and
deliberation on the part of defendant. Ultimately, defendant’s argument can be reduced to one of
witness credibility, which is solely within the province of the jury. People v Lemmon, 456 Mich
625, 642-643, 647; 576 NW2d 129 (1998). If the jury determined the witnesses to be credible,
there was sufficient evidence to convict defendant of first-degree premeditated murder.
Defendant’s second issue on appeal is whether the trial court erred when it denied his
motion for a directed verdict. When reviewing a trial court’s decision on a motion for directed
verdict, this Court reviews the record de novo to determine whether the evidence presented by
the prosecutor, viewed in the light most favorable to the prosecution, could persuade a rational
trier of fact that the essential elements of the crime were proved beyond a reasonable doubt.
People v Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001). Defendant argues that the trial
court employed the incorrect standard in denying the directed verdict and that there was
insufficient evidence to support a conviction for first-degree premeditated murder. Viewing the
testimony in a light most favorable to the prosecution, a rational finder of fact could have found
that the essential elements of the crime had been proven beyond a reasonable doubt particularly
when, given the deferential standard of review, a reviewing court is required to draw all
reasonable inferences and make credibility choices in support of the jury verdict. People v
Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
Defendant also asserts the trial court used the incorrect standard in ruling on his motion
for a directed verdict. Defendant contends the trial court ruled based upon whether an issue of
fact existed for the jury’s determination, rather than basing the decision upon the sufficiency of
the evidence. While the court referenced the issue of witness credibility and the existence of a
question of fact as appropriate for jury determination, the ruling by the court does not suggest
that as the basis for its ruling. Rather, the court indicated that, if the testimony of the witness
were believed, the words he overheard spoken by defendant, just prior to the shooting, were
sufficient to show premeditation. The judge indicated that the absence of a weapon on the victim
would also support a determination of premeditation. Even if in denying a directed verdict the
trial court only stated that a question of fact existed, there was sufficient evidence to support
defendant’s convictions.
Defendant’s third issue on appeal is whether the trial court erred in failing to engage in an
inquiry regarding the potential for jury exposure to extraneous information from courtroom
spectators. As the issue is unpreserved, it is reviewed for plain error affecting defendant’s
substantive rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Defendant
asserts the trial court erred by failing to develop a record and inquire into the possibility that the
jury was exposed to extraneous information that may have impacted its verdict. Defendant refers
only to a courtroom incident that is unspecified with regard to any details, which led the judge,
outside the purview of the jury, to instruct the attorneys to advise and admonish spectators
regarding their behavior.
The test for determining whether extrinsic influences impacted a jury’s verdict, requiring
reversal, requires proof that the jury was exposed to extraneous influences and that the
extraneous influences created a real and substantial possibility that they could have affected the
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jury’s verdict. People v Fletcher, 260 Mich App 531, 540; ___ NW2d ___ (2004). Defendant
must demonstrate that the extraneous influence was substantially related to a material aspect of
the case or that there is a direct connection between the extrinsic material and the adverse
verdict. Id. at 4. The record provides no indication that the jury was exposed to extraneous facts
and defendant cannot elucidate any occurrence within the courtroom that impacted the jury.
Interruptions by spectators within a courtroom do not necessarily rise to the level of extraneous
facts or “evidence.” People v Duby, 120 Mich App 241, 250-251; 327 NW2d 455 (1982). The
court’s statements were general in nature and not directed to a specific individual and did not
reference a particular action or outburst. Defendant provides no factual basis to conclude that
anything seen or heard by the court, if it occurred, was prejudicial to the defense or that the jury
was affected by it. Further, the trial court instructed the jury at the beginning of trial, and at the
close of proofs, to only consider the evidence properly presented within the court during trial.
People v Van Epps, 59 Mich App 277, 284-285; 229 NW2d 414 (1975).
Defendant’s fourth issue on appeal is a claim of ineffective assistance of counsel, based
upon defense counsel’s failure to act to insure an adequate inquiry and curative action following
the court’s instruction to counsel regarding spectator behavior in the courtroom. As the issue
was not properly preserved by timely motion for a new trial or an evidentiary hearing, this Court
reviews it only to the extent that claimed counsel mistakes are apparent on the record. People v
Johnson, 144 Mich App 125, 129-130; 373 NW2d 263 (1985). Defendant argues counsel was
ineffective for failing to seek further investigative proceedings or moving for a mistrial based on
an unspecified occurrence in the courtroom. The record fails to provide a factual basis for his
claim, as it is completely silent except for the court’s instruction to counsel. As defendant is
unable to demonstrate that something inappropriate occurred in the courtroom, counsel could not
be ineffective in failing to address it. Trial counsel is not required to advocate meritless
positions. People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). As the issue is
neither preserved, nor properly presented, it should not be considered further by this Court.
MCR 7.212(C)(6)(c), (g).
Defendant’s final issue on appeal is whether the trial court erred in denying defendant’s
pretrial motion to remand for further preliminary examination proceedings. This Court reviews
the trial court’s decision under an abuse of discretion standard. People v Oliver, 170 Mich App
38, 43; 427 NW2d 898 (1988), modified and remanded 33 Mich 862 (1989). Defendant asserts
that failure to have a specific witness testify at the preliminary examination was an error,
necessitating re-opening of the preliminary examination. After reviewing the preliminary
examination testimony, the trial court noted the omission of the testimony would not serve to
negate the evidence provided that was sufficient to bind defendant over for first-degree
premeditated murder. Even if conflicting evidence exists, or evidence exists that raises a
reasonable doubt with regard to defendant’s guilt, a defendant should still be bound over for trial
for resolution of the issue by the trier of fact. People v Selwa, 214 Mich App 451, 457; 543
NW2d 321 (1995).
Even if an evidentiary deficiency had existed at defendant’s preliminary examination,
reversal of his conviction is not mandated. In People v Hall, 435 Mich 599, 601-603; 560 NW2d
520 (1990), our Supreme Court ruled 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. An erroneous conclusion
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that sufficient evidence was presented at the preliminary examination is rendered harmless by the
presentation at trial of sufficient evidence to convict. Id. at 602-603; People v Libbett, 251 Mich
App 353, 357; 650 NW2d 407 (2002). The witness sought by defendant ultimately testified at
trial. As defendant received a fair trial and has not demonstrated any prejudice, reversal in this
case would not be required even if the evidence presented at the preliminary examination were
insufficient. Hall, supra, 435 Mich 601.
Affirmed.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Karen M. Fort Hood
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