PEOPLE OF MI V RHASHI ALI HARRIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 17, 2005
Plaintiff-Appellee,
v
No. 255424
Wayne Circuit Court
LC No. 03-012776-01
RHASHI ALI HARRIS,
Defendant-Appellant.
Before: Jansen, P.J., and Cavanagh and Fort Hood, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of three counts of assault with intent to
commit murder, MCL 750.83, committing a crime involving a violent act while wearing body
armor, MCL 750.227f, intentional discharge of a weapon at an occupied structure, MCL
750.234b, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during
the commission of a felony, MCL 750.227b. Defendant appeals as of right, and we affirm.1
Defendant first argues that the trial court erred in scoring his minimum sentencing
guidelines. We disagree. Because defendant committed the offense after January 1, 1999, the
legislative sentencing guidelines apply. MCL 769.34(2); People v Abramski, 257 Mich App 71,
74; 665 NW2d 501 (2003). We review a trial court’s decision regarding the points to assess in
the sentencing guidelines calculations for whether the court properly exercised its discretion and
the record adequately supported the particular score. People v Wilson, 265 Mich App 386, 397;
695 NW2d 351 (2005). When the trial court’s sentence is within the appropriate guidelines
range, “the Court of Appeals must affirm the sentence unless the trial court erred in scoring the
guidelines or relied on inaccurate information in determining the defendant’s sentence.” People
v Babcock, 469 Mich 247, 261; 666 NW2d 231 (2003). The proper construction or application
1
Defendant was sentenced as a habitual offender, fourth offense, MCL 769.12, to fifty to
seventy-five years’ imprisonment for the assault with intent to murder convictions, thirty-two to
forty-eight months’ imprisonment for the body armor conviction, thirty-two to forty-eight
months’ imprisonment for the discharge of a weapon at a building conviction, forty to sixty
months’ imprisonment for the felon in possession conviction, and two years’ imprisonment for
the felony-firearm conviction.
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of statutory sentencing guidelines presents a question of law that is reviewed de novo. People v
Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).
Here, defendant’s minimum sentence was within the recommended range. Defendant
argues that the trial court erred in scoring prior record variable (PRV) 6 and PRV 7 because
those scores constitute double counting. PRV 6 should be scored at ten points if “[t]he offender
was on parole, probation or delayed sentence status or on bond awaiting adjudication or
sentencing for a felony.” MCL 777.56(1)(c). The court correctly scored ten points for PRV 6
because defendant was on parole when he committed the instant offenses. PRV 7 should be
scored twenty points if [t]he offender has 2 or more subsequent or concurrent convictions.”
MCL 777.57(1)(a). The court correctly assessed twenty points for PRV 7 because defendant had
two or more concurrent convictions. MCL 777.57(1)(a). The plain language of the legislative
sentencing guidelines required that the court score defendant ten points for PRV 6 and twenty
points for PRV 7. The trial court did not err when it correctly applied the statute.
Defendant also challenges his scores for offense variable OV 1, OV 3 and OV 6.
Defendant claims that because OV 1, OV 3 and OV 6 were not submitted to the jury, they may
not be scored. He does not assert that the record fails to support these scores. Defendant
contends that his sentence was imposed in violation of the United States Supreme Court’s
decision in Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), because
the jury did not make a finding beyond a reasonable doubt regarding these variables. However,
the Michigan Supreme Court and this Court have concluded that Blakely does not apply to
sentences imposed in Michigan. People v Claypool, 470 Mich 715, 730-731 n 14; 684 NW2d
278 (2004); Wilson, supra at 399. The standard is whether the record adequately supported the
particular score. Wilson, supra at 397.2
Defendant was scored fifty points for OV 6 for having the premeditated intent to kill.
MCL 777.36(1)(a). The record adequately supports the finding that defendant acted with
premeditation. Mohammed Shahib testified that defendant entered a blue van and waited twenty
minutes before emerging with a rifle. The shooting started five minutes after Hodges parked in
front of Tiffany’s. This evidence supports a finding of premeditation because it shows that
defendant planned to wait in the van for Hodges to arrive at Tiffany’s and then shoot him.
Defendant asserts that he was denied the effective assistance of counsel because defense
counsel did not object to the guidelines scoring at sentencing. However, because the sentencing
guidelines were scored correctly, defense counsel was not ineffective for failing to object to the
guidelines. Counsel is not ineffective for failing to advocate a futile or meritless position.
People v Alvin Walker, 265 Mich App 530, 546; 697 NW2d 159 (2005).
2
Because defendant only challenges the submission of the issue of scoring of OV 1 and OV 3 to
the jury, we need not address these scores. Nonetheless, we note that the scoring of OV 1 was
proper because of defendant’s use of a firearm at a person. Furthermore, OV 3 was scored
properly due to the permanent eye injury suffered by one of the three victims. Defendant’s
reliance on automobile negligence law to contest the degree of the injury is simply inapplicable
and without merit.
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Next, defendant raises four instances of alleged prosecutorial misconduct. After
examining each of the challenged remarks in context, we did not find any instances of
prosecutorial misconduct. To preserve an issue of prosecutorial misconduct for appeal, a
defendant must timely and specifically object. People v Knox, 469 Mich 502, 508; 674 NW2d
366 (2004). Because defendant failed to object to any of the challenged comments, this issue
was not preserved. To avoid forfeiture of review of an unpreserved allegation of prosecutorial
misconduct, the defendant must demonstrate a plain error that affected his substantial rights.
People v McLaughlin, 258 Mich App 635, 645; 672 NW2d 860 (2003), citing People v Carines,
460 Mich 750, 763-764; 597 NW2d 130 (1999).
Generally, issues of prosecutorial misconduct are reviewed on a case-by-case basis, and
this Court must review the pertinent part of the record to evaluate the remarks in context and in
light of the defendant’s arguments to determine whether defendant was denied a fair and
impartial trial. People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004). If a curative
instruction could have alleviated any prejudicial effect, this Court will not find error requiring
reversal. People v Ackerman, 257 Mich App 434, 448-449; 669 NW2d 818 (2003).
Defendant first argues that the prosecutor intentionally tried to scare the jury in order to
convict him. A prosecutor may not intentionally inject into trial inflammatory arguments with
no apparent justification except to arouse prejudice. People v Bahoda, 448 Mich 261, 266; 531
NW2d 659 (1995). Prosecutors are free to argue the evidence and to draw reasonable inferences
from it. People v Aldrich, 246 Mich App 101, 112; 631 NW2d 67 (2001). Viewed in context,
these remarks were meant to counter defendant’s attempt to impeach Shahib’s identification
testimony by explaining why Shahib may have been hesitant to identify defendant. It was a
reasonable inference that Shahib was scared of defendant at the preliminary examination because
of the nature of the crime.
Defendant asserts the prosecutor made several improper references to the location of the
crime, which was near the Frank Murphy Hall of Justice, in order to frighten the jury. The
prosecutor established the location of the crime through testimony at trial. While the emphasis
on the crime location may have been redundant and colorful, the prosecutor did not say anything
to scare the jury into convicting defendant simply because the assault occurred close to the
courthouse. This was not prosecutorial misconduct.
Defendant also challenges the prosecutor’s statement during closing that Hodges and
Melita Miller could not be present due to “unfortunate circumstances.” Defendant contends that,
because no other comment about the absence of these witnesses was made before the jury, this
remark allowed the jury to speculate that the unfortunate circumstances were that the victims
were too scared to testify. While the remark might have been better left unsaid, it was isolated
and brief, and nothing in the record indicated that the jury made any assumptions about the
absence of the victims. Defendant failed to show that he suffered any actual prejudice from this
remark. McLaughlin, supra. In any case, the court instructed the jury that the attorneys’ remarks
were not evidence.
Defendant next claims that remarks that the prosecutor made regarding defendant’s guilt
were improper. Although the prosecutor made a statement about his opinion, he expressed his
opinion in terms of the evidence satisfying the elements of the offenses. It is clear from these
remarks that the prosecutor was not offering his personal opinion that defendant was guilty. He
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was commenting on his belief that he had presented sufficient evidence to support each element
of the charged crimes. The prosecutor also stated during his rebuttal that defendant was “a bad
guy.” The prosecutor is not required to use the blandest of terms and can use “hard language”
when it is supported by the evidence. People v Ullah, 216 Mich App 669, 678; 550 NW2d 568
(1996). The evidence supported the assertion that defendant fired into a crowd of people with an
assault rifle, arguably making him “a bad guy.” The remark did not constitute an assertion that
the jury should convict defendant regardless of the evidence. People v Matuszak, 263 Mich App
42, 56; 687 NW2d 342 (2004).
Defendant’s argument that the prosecutor diluted the burden of proof is without merit.
Review of the statements reveals that the prosecutor was not referring to the burden of proof, but
was referring to the process by which the jury may examine the evidence and reach its verdict.
The prosecutor never suggested that defendant had to prove that the evidence was not
reasonable. Prior to the comment challenged by the defense, the prosecutor expressly
acknowledged that the burden of proof rested with the prosecution and that burden was beyond a
reasonable doubt. Further, the court correctly instructed the jury that defendant was not required
to prove anything and that the prosecutor must prove each element beyond a reasonable doubt.
To the extent that the jury may have misinterpreted any of the prosecutor’s remarks, the
instruction given by the trial court would have been sufficient to dispel any prejudicial effect.
Bahoda, supra at 281.
Defendant next claims that the prosecutor improperly implied that the defense was a lie,
commented on defendant’s exercise of his right to counsel and denigrated defense counsel
during rebuttal. Defendant does not explain exactly how the challenged statement denigrates
defense counsel or concerns a comment on his exercise of his right to counsel. An appellant may
not merely announce his position and leave it to the appellate court to discover and rationalize
the basis for his claims, nor may he give only cursory treatment with little or no citation of
supporting authority. People v Johnigan, 265 Mich App 463, 467; 696 NW2d 724 (2005). In
any case, the remark was not improper because the prosecutor did not attack defense counsel’s
personality or character or ask the jury to convict defendant because of defense counsel. See
McLaughlin, supra at 646.
Defendant next argues that a new trial is required because he did not receive the effective
assistance of counsel. We disagree. Whether a defendant was denied the effective assistance of
counsel is a mixed question of fact and constitutional law. People v Grant, 470 Mich 477, 484;
684 NW2d 686 (2004). A judge must first find the facts and then decide whether those facts
establish a violation of the defendant’s constitutional right to the effective assistance of counsel.
Id. A trial court’s finding of fact are reviewed for clear error. Id. Questions of constitutional
law are reviewed de novo. Id.
To establish ineffective assistance of counsel, a defendant must show: (1) that the
defense counsel’s performance was objectively unreasonable in light of prevailing professional
norms; and (2) a reasonable probability that, but for the defense counsel’s error, a different
outcome reasonably would have resulted. People v Carbin, 463 Mich 590, 600; 623 NW2d 884
(2001); People v Mack, 265 Mich App 122, 129; 695 NW2d 342 (2005). “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” Carbin, supra
at 600, quoting Strickland v Washington, 466 US 668, 687; 690-691; 104 S Ct 2052; 80 L Ed 2d
674 (1984). The defendant must overcome a strong presumption that counsel’s performance
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constituted sound trial strategy. Matuszak, supra at 58-59. This Court does neither substitutes
its judgment for that of counsel regarding trial strategy nor evaluates trial counsel’s decisions
with the benefit of hindsight. Id. at 58.
Defendant’s first ineffective assistance claim is predicated on defense counsel’s
agreement to strike two of the victims from the witness list after he was informed that they were
unavailable to testify. However, defense counsel’s decision to strike the witnesses was sound
trial strategy. If they had appeared, they likely would have described being fired upon and may
have offered damaging testimony to explain why defendant wanted to kill them.
Defendant next argues that defense counsel was ineffective for failing to object to the
introduction of Hodges’ hearsay testimony. He contends that, without that testimony, Hodge’s
and Miller’s presence outside the night club could not be established and two of the counts of
assault with intent to commit murder would have been dismissed. Detroit Police Officer Mark
Carson testified that he interviewed Miller and Hodges after the shooting, and “[Hodges] stated
that they were in front of club Tiffany’s.” While this statement was arguably inadmissible
hearsay, defense counsel’s failure to object to its admission did not constitute ineffective
assistance of counsel. The victims’ presence outside Tiffany’s at the time of the shooting was
established by testimony from White, Douglas Parson and Carson’s non-hearsay testimony.
White testified that the bullets targeted Hodges’ car. Thus, Hodges’ and Miller’s testimony was
not required to prove the elements of the crime. Defendant failed to demonstrate that, but for
defense counsel’s decision to strike the witnesses, the verdict would have been different.
Defendant next argues that defense counsel was ineffective because he elicited from two
police officers that defendant had exercised his right to remain silent. However, defense counsel
elicited that information as a matter of trial strategy to preclude testimony regarding defendant’s
responses on a gunshot residue test form. Defense counsel objected before the officer could
testify regarding the contents of the form and prevented the jury from hearing potentially
damaging statements. This Court will not substitute its judgment for that of counsel regarding
matters of trial strategy. Id.
Defendant next argues that defense counsel was ineffective because he should not have
allowed admission of the gunshot residue expert’s report without the raw data. MRE 703
requires that the facts or data in the particular case upon which an expert bases an opinion or
inference be in evidence. Here, the expert explained to the jury how the gunshot residue test was
performed, testified that he observed gunshot residue in the samples taken from defendant, and
stated that he reached the conclusion that three of the four samples were positive for gunshot
residue based on his observations. Thus, the facts and data upon which the expert based his
opinion were in evidence, and defense counsel was not ineffective for failing to make a meritless
objection. Alvin Walker, supra at 546.
Defendant asserts that defense counsel was ineffective because counsel should have
obtained the raw data underlying the gunshot residue expert’s conclusions before trial in order to
effectively cross-examine the expert. However, defense counsel vigorously cross-examined the
expert. He elicited that the results did not establish when the gun was fired, when the gunshot
residue was deposited, or what type of weapon left the residue. Defense counsel also brought out
that the presence of residue did not necessarily mean that defendant was the shooter.
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Defendant argues that defense counsel should have consulted an expert to discover lines
of questions regarding other potential sources of gunshot residue. Because no hearing was held
on this issue, review is limited to the existing record. Ackerman, supra at 455. The record does
not reveal whether defense counsel consulted an expert and determined that such an expert
would not be helpful. Counsel’s decision whether to call a witness is presumed to be a strategic
one for which a court will not substitute its judgment. Id. Defendant did not offer any expert’s
affidavit regarding the gunshot residue results. Thus, defendant failed to establish the factual
predicate for his claim because he failed to offer any proof that an expert would have testified in
support of defendant. Id. Defendant did not establish a reasonable probability that, but for
counsel’s alleged error, the result of the proceedings would have been different, especially in
light of the overwhelming evidence.
Defendant also argues on appeal that defense counsel should have moved for an
evidentiary hearing to determine whether the gunshot residue results were reliable under MRE
702. The trial court has a fundamental duty to ensure that all expert testimony is reliable.
Gilbert v Daimler Chrysler Corp, 470 Mich 749, 781; 685 NW2d 391 (2004). Here, the trial
court properly admitted the expert testimony. Steiner described his extensive training and
qualifications as a forensic chemist. He also described in detail the method he used to determine
the presence of gunshot residue in the samples taken from defendant. The court found that
Steiner could testify as an expert.
On appeal, defendant claims that Steiner’s opinion about the gunshot residue was
unreliable because the gunshot residue questionnaire called for information regarding whether
the arresting officer had recently fired a gun, but not whether other officers involved in the arrest
had done so. Defendant does not contend that the testimony was based on insufficient data, was
the product of unreliable principles or that Steiner did not reliably apply the principles to the
facts of the case. The claim that the source of the particles may not have been from firing the
rifle affects the weight of the evidence, not its reliability or admissibility. Defendant was not
deprived of the effective assistance of counsel because counsel failed to move for an evidentiary
hearing on the admissibility of the gunshot residue results.
Defendant contends that defense counsel was ineffective for failing to object to
prosecutorial misconduct. As discussed above, the challenged remarks did not constitute
prosecutorial misconduct. The failure to assert a meritless objection does not constitute
ineffective assistance of counsel. Alvin Walker, supra at 546.
Defendant argues that defense counsel was ineffective because he failed to ask for a
mistrial after the court read the felonies underlying defendant’s felon in possession of a firearm
charge to the jury during voir dire. Because counsel stipulated to the fact of the prior conviction,
there was no reason for the court to read that information to the jury. People v Swint, 225 Mich
App 353, 379; 572 NW2d 666 (1997). It appears from the record that the court inadvertently
read the basis of defendant’s previous convictions to the jury. However, defendant failed to
establish that defense counsel’s failure to ask for a mistrial was prejudicial. Defense counsel
may have chose to refrain from calling for a mistrial to avoid drawing attention to defendant’s
prior convictions. A mistrial should be granted only because of an irregularity, which is
prejudicial to the rights of the defendant and impairs his ability to get a fair trial. People v Alter,
255 Mich App 194, 205; 659 NW2d 667 (2003). Defendant failed to meet the requirements for a
mistrial in light of the fleeting mention.
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Defendant’s final assertion of ineffective assistance of counsel is defense counsel’s
failure to object when the trial court read the standard jury instruction for intentionally
discharging a firearm at an occupied building, CJI2d 11.26a. Defendant erroneously relies on
People v Wilson, 230 Mich App 590, 594; 585 NW2d 24 (1998), to support his argument that a
prosecutor must prove that occupants of the building were put in fear in order to prove all the
elements of MCL 750.234b(1). In Wilson, this Court held that evidence that the occupants of the
building were put in fear from the shooting and that the defendant intended to put them in fear
was sufficient evidence to support the second element of the offense, that the defendant fired a
weapon at an occupied structure, rather than over it. Id. at 593-594. Because the jury was
properly instructed, defense counsel was not ineffective for failing to object. See Alvin Walker,
supra at 546.
Defendant’s next issue is whether the prosecutor presented sufficient evidence to support
his convictions for discharging a firearm at an occupied building and for assault with intent to
commit murder. This Court reviews de novo a claim that the evidence at trial was insufficient to
support a conviction. People v Solmonson, 261 Mich App 657, 661; 683 NW2d 761 (2004).
This Court must view the evidence in a light most favorable to the prosecution and determine
whether a rational trier of fact could have found all the elements of the offense proved beyond a
reasonable doubt. Id.
MCL 750.234b, intentionally discharging firearm at dwelling or occupied structure,
provides, in pertinent part:
. . . [A]n individual who intentionally discharges a firearm at a facility that he or
she knows or has reason to believe is a dwelling or an occupied structure is guilty
of a felony, punishable by imprisonment for not more than 4 years, or a fine of not
more than $2,000.00, or both.
Shahib testified that immediately before the shooting he saw defendant standing in the
parking lot across from Tiffany’s with a rifle in his hand. White’s testimony established that, at
the time of the shooting, people were entering the building. He also testified that bullets
ricocheted off the building near where he stood. Gunshot residue on defendant’s hand indicated
that defendant fired a gun recently. Thus, the evidence, viewed in a light most favorable to the
prosecutor, would allow a rational trier of fact to find that the essential elements of the crime of
discharging a firearm at an occupied structure were proved beyond a reasonable doubt. See
CJI2d 11-26a.
In order to support a conviction for assault with intent to commit murder, the prosecutor
must prove beyond a reasonable doubt that defendant: (1) committed an assault, (2) with an
actual intent to kill, (3) which, if successful, would make the killing murder. People v Brown,
267 Mich App 141, 147-148; 703 NW2d 230 (2005). The intent to kill may be proven by
inference from any facts in evidence; minimal circumstantial evidence of intent is sufficient.
People v McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999).
Defendant argues that the prosecutor did not prove an intent to kill. However,
defendant’s intent to kill can be inferred from defendant’s waiting in the van, the number of
shots fired and the target. Shahib testified that defendant got into the van, waited about twenty
minutes and then emerged with a rifle. The shooting started shortly after defendant came out of
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the van. White testified that five minutes after Hodges and Miller arrived, the shooting started
from the direction of the parking lot. The gunshots seemed to follow Hodges’ car as it drove up
the street, indicating that Hodge was the intended victim. A police officer found ten shell
casings in the area of the parking lot where Shahib saw defendant with the rifle. Under the
doctrine of transferred intent, defendant’s intent to kill Hodges can be transferred to Miller and
White. See People v Plummer, 229 Mich App 293, 305-306 n 2; 581 NW2d 753 (1998).
Viewed in a light most favorable to the prosecution, the prosecutor presented sufficient evidence
to support defendant’s convictions of three counts of assault with intent to commit murder.
Finally, defendant argues that the jury was improperly instructed on the elements of
discharging a firearm at an occupied building. In People v Lueth, 253 Mich App 670, 688; 660
NW2d 322 (2002), this Court held that counsel’s affirmative statement that there were no
objections to the jury instructions constituted an express approval of the instructions that waived
review on appeal. Here, because defendant affirmed that he was satisfied with the instructions
given at trial, he waived this issue and appellate review is precluded. Matuszak, supra at 57.
Affirmed.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood
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