PEOPLE OF MI V EDWARD WOODS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 21, 2006
Plaintiff-Appellee,
v
No. 262681
Wayne Circuit Court
LC No. 04-012254-01
EDWARD WOODS,
Defendant-Appellant.
Before: Cooper, P.J., and Hoekstra and Smolenski, JJ.
PER CURIAM.
Following a jury trial defendant was convicted of armed robbery, MCL 750.529, and
possession of a firearm during the commission of a felony, MCL 750.227b. He was
subsequently sentenced to serve 27 months to 10 years’ imprisonment for the armed robbery
conviction and two years’ imprisonment for the felony-firearm conviction. Defendant appeals as
of right. We affirm.
Defendant first argues that he was deprived of a fair trial because the prosecutor
improperly elicited testimony that he exercised his right to remain silent after being informed of
his Miranda1 rights during a voluntary police interview. Because defendant failed to object to
this testimony at trial, our review is limited to a determination whether defendant has established
plain error affecting his substantial rights, i.e., error that was obvious and which affected the
outcome of his trial. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). We find
no such error on the facts of this case.
The constitutional privilege against self-incrimination and the right of due process restrict
the use of a defendant’s silence in a criminal trial. See People v Dennis, 464 Mich 567, 573-575;
628 NW2d 502 (2001). However, constitutional error requiring reversal does not arise from the
erroneous admission of evidence of a defendant’s silence if the prosecutor did not exploit the
issue of the defendant’s silence and the error was otherwise harmless. Id. at 576-577; see also
People v Gilbert, 183 Mich App 741, 747; 455 NW2d 731 (1990). Here, the police detective’s
testimony that defendant did not provide a statement at the interview was both isolated and brief.
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Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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Moreover, the prosecutor did not exploit this testimony. To the contrary, the prosecutor’s sole
and limited reference to the detective’s testimony during rebuttal argument was responsive to the
theories proffered by defense counsel during closing argument and did not place evidence of
defendant’s silence before the jury as substantive evidence of defendant’s guilt. Cf. Doyle v
Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976). Given the limited nature and use to
which the challenged testimony was put, and considering that defendant was identified by the
robbery victim, Ibrahim Khaled, as one of the two individuals who entered his gas station and
demanded money at gunpoint, we do not conclude that defendant has established that elicitation
of that testimony constitutes plain error affecting his substantial rights.
Defendant next argues that he was denied a fair trial as a result of the improper admission
of similar acts evidence; specifically, testimony regarding a recent string of robberies in the
southwest Detroit area. We disagree. Because defendant failed to object to this testimony at
trial, our review is again limited to a determination whether defendant has established plain error
affecting his substantial rights. Carines, supra at 763.
Defendant is correct that “evidence of other crimes, wrongs, or acts” is inadmissible to
prove a defendant’s character or propensity to commit the charged crime. MRE 404(b)(1); see
also People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004). Here, however, reference to the
robberies at issue was not made to show defendant’s character or for any other purpose relevant
to MRE 404(b). Rather, reference to the robberies was made only to show that defendant
became a suspect in this case based on information obtained during an investigation into those
robberies, and to explain why Khaled was ultimately shown three separate photographic lineups.
Thus, because the evidence was not offered to show character or for any other purpose relevant
to MRE 404(b), the prohibition against evidence of other crimes, wrongs, or acts is inapplicable
and admission of the challenged evidence did not amount to plain error. See People v
VanderVliet, 444 Mich 52, 65; 508 NW2d 114 (1993).
Defendant next argues that the evidence was insufficient to support his armed robbery
conviction. Again, we disagree. In determining the sufficiency of the evidence to support a
conviction, we review the evidence de novo and in the light most favorable to the prosecution to
determine whether a rational trier of fact could find that the essential elements of the crime had
been proven beyond a reasonable doubt. People v Tombs, 472 Mich 446, 459; 697 NW2d 494
(2005).
To convict a defendant of armed robbery, the trier of fact must find the following
elements: “(1) an assault, (2) a felonious taking of property from the victim’s presence or
person, (3) while the defendant is armed with a weapon described in the statute.” Carines, supra
at 757. In challenging the sufficiency of evidence to support these elements, defendant
challenges only the evidence to support that property was taken “from the victim’s presence or
person.” Regarding this elemental requirement, this Court has held that “[a] thing is in the
presence of a person, in respect to robbery, [if it] is so within his reach, inspection, observation
or control, that he could, if not overcome by violence or prevented by fear, retain his possession
of it.” People v Beebe, 70 Mich App 154, 159; 245 NW2d 547 (1976) (citation and internal
quotation marks omitted).
At trial, Khaled testified that after defendant and his accomplice pointed a gun at him, he
opened a door to let them near the cash register “so I don’t die [sic],” then turned and “ran away
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for my life” through the back exit of the gas station. After running around the building, Khaled
reentered the gas station and discovered that there was no money in the cash register and his
wallet as well as a joystick and a football were missing. In addition to this testimony, the
security tape depicted defendant and his accomplice taking money and reaching through the
cashier’s window after Khaled had fled. Circumstantial evidence and reasonable inferences that
arise from the evidence can constitute sufficient proof of the elements of a crime. People v Jolly,
442 Mich 458, 466; 502 NW2d 177 (1993). Here, it is reasonable to infer from the foregoing
testimony and evidence that Khaled, who was standing behind the cash register when guns were
pointed at him, permitted defendant access to the cash register out of fear and would not have run
from the station but for this fear, i.e., that Khaled was in control of the property taken and would
have remained so “if not overcome by violence or prevented by fear.” Beebe, supra. Therefore,
there was sufficient evidence to support defendant’s armed robbery conviction.
Finally, defendant argues that he was denied the effective assistance of counsel. We
disagree. Because an evidentiary hearing on these claims has not been held, our review is
limited to mistakes apparent on the record. See People v Rodriguez, 251 Mich App 10, 38; 650
NW2d 96 (2002). Whether the facts in the record suggest that defendant has been deprived of
his right to the effective assistance of counsel presents a question of constitutional law that we
review de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise. People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). To
overcome this presumption, a defendant must show that counsel’s performance fell below an
objective standard of reasonableness, and that a reasonable probability exists that, but for
counsel’s errors, the result of the proceedings would have been different. People v Effinger, 212
Mich App 67, 69; 536 NW2d 809 (1995). It is presumed that defense counsel’s decisions
regarding what evidence to present or whether to call and question witnesses constitute trial
strategy, which this Court will not review with the benefit of hindsight. People v Dixon, 263
Mich App 393, 398; 688 NW2d 308 (2004). Moreover, a defense counsel’s failure to call
witnesses or present other evidence may amount to ineffective assistance of counsel only when it
deprives the defendant of a substantial defense. Id. “A substantial defense is one which might
have made a difference in the outcome of the trial.” People v Kelly, 186 Mich App 524, 526;
465 NW2d 569 (1990).
At trial, the police acknowledged that defendant’s accomplice, Dawan Colfer, admitted
his involvement in the robbery and also named two other individuals who were involved, but did
not make any statement implicating defendant during interrogation. Relying on these facts,
defendant argues that Colfer’s statement exculpated him and that defense counsel’s failure to call
Colfer as a witness or attempt to introduce his statement as one against penal interest, see MRE
804(b)(3), denied him the effective assistance of counsel. We disagree.
Although Colfer did not implicate defendant in the robbery, there is no evidence that
Colfer made any statement specifically denying defendant’s involvement. Given this fact, it was
objectively reasonable for defense counsel not to call Colfer as a witness because it is possible
that Colfer may have implicated defendant. Effinger, supra. Because there is no evidence that
Colfer’s statement explicitly exculpated defendant, a decision not to introduce Colfer’s testimony
pursuant to MRE 804(b)(3) was also objectively reasonable. Id. Thus, given that the decision to
call witnesses or present evidence constitutes trial strategy, we will not second guess defense
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counsel’s decision not to call Colfer or attempt to introduce his statement now that defendant has
been convicted. Dixon, supra.
Moreover, given Khaled’s testimony implicating defendant in the robbery, it is unlikely
that a decision by defense counsel to call Colfer or seek introduction of his statement under MRE
804(b)(3), would have made a difference in the outcome of the trial. Kelly, supra. Thus, defense
counsel’s failure to call Colfer denied defendant neither a substantial defense nor the effective
assistance of counsel. Dixon, supra.
Affirmed.
/s/ Jessica R. Cooper
/s/ Joel P. Hoekstra
/s/ Michael R. Smolenski
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