PEOPLE OF MI V ARTHUR JACKSON III
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 28, 2006
Plaintiff-Appellee,
v
No. 263507
Wayne Circuit Court
LC No. 04-012306-01
ARTHUR JACKSON III,
Defendant-Appellant.
Before: Wilder, P.J. and Kelly and Borrello, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of assault with intent to murder,
MCL 750.83, and carrying a concealed weapon, MCL 750.227. Defendant was sentenced, as a
fourth habitual offender, MCL 769.12, to 30 to 45 years’ imprisonment for assault with intent to
murder and one to five years’ imprisonment, to be served concurrently, for carrying a concealed
weapon. We affirm.
I. Res Gestae Witness
Defendant first contends that the prosecutor failed to exercise due diligence in locating a
res gestae witness and, therefore, the trial court should have read the “missing witness”
instruction. We disagree.
As this Court stated in People v Eccles, 260 Mich App 379, 388; 677 NW2d 76 (2004),
A prosecutor who endorses a witness under MCL 767.40a(3) is obliged to
exercise due diligence to produce that witness at trial. A prosecutor who fails to
produce an endorsed witness may show that the witness could not be produced
despite the exercise of due diligence. If the trial court finds a lack of due
diligence, the jury should be instructed that it may infer that the missing witness’s
testimony would have been unfavorable to the prosecution’s case. We review a
trial court’s determination of due diligence and the appropriateness of the
“missing witness” instruction for an abuse of discretion. [Citations omitted.]
“The test for due diligence is whether good-faith efforts were made to procure the testimony of
the witness, not whether increased efforts would have produced it.” People v Watkins, 209 Mich
App 1, 4; 530 NW2d 111 (1995).
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The prosecutor endorsed Kieran Baxter as a res gestae witness, but was unable to produce
him for trial. During the due diligence hearing, the prosecutor and Officer Derryck Thomas
recounted, in detail, their efforts to produce Baxter. The prosecutor called five hospitals and a
telephone number Baxter had provided when he was previously jailed. However, the hospitals
had no record of Baxter, and the number Baxter had provided was no longer in service. On the
night before trial, the prosecutor also sent an officer to the address Baxter had previously
provided to police, which was also in the law enforcement information system (LEIN).
However, no one answered the door. Officer Thomas indicated that when he attempted to serve
Baxter at his mother’s house on four different occasions, no one answered the door. Officer
Thomas also spoke to Baxter’s mother and checked the three county jails and morgues in
Dickerson where Baxter’s mother indicated Baxter might be. Officer Thomas even sent
surveillance crews to Baxter’s mother’s house, but they were unable to find Baxter. Further, the
record reflects that the prosecutor’s efforts were ongoing as of a month before trial. After
reviewing the record, we conclude that the trial court did not abuse its discretion in finding due
diligence and not giving the “missing witness” instruction.
II. Prosecutor’s Conduct
Defendant next argues that the prosecutor improperly appealed to the jurors’ sense of
civic duty and defense counsel failed to object. We disagree. This Court reviews unpreserved
issues of prosecutorial misconduct for plain error. People v Aldrich, 246 Mich App 101, 110;
631 NW2d 67 (2001). To avoid forfeiture, defendant must show that there was plain error that
affected his substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
“This Court reviews claims of prosecutorial misconduct case by case, examining the
remarks in context, to determine whether the defendant received a fair and impartial trial.”
Aldrich, supra at 110. It is improper for the prosecutor to appeal to the jury’s civic duty, but the
prosecutor “is given great latitude to argue the evidence and all inferences relating to his theory
of the case.” People v Thomas, 260 Mich App 450, 455-456; 678 NW2d 631 (2004). “[A]n
otherwise improper remark may not rise to an error requiring reversal when the prosecutor is
responding to the defense counsel’s argument.” People v Kennebrew, 220 Mich App 601, 608;
560 NW2d 354 (1996).
Read in context, the prosecutor’s remarks were responsive to defense counsel’s theory
that the police were called to investigate Baxter and acted improperly towards defendant during
the course of their investigation. Specifically, during opening statement, defense counsel
claimed that defendant was merely in the “wrong place at the wrong time” when the police
arrived and began their investigation. Defense counsel noted that unlike defendant, Baxter, who
“was the subject of the 911 call,” knew why the police were there and “fit the description that
Alexander had called in [to police].” Defense counsel continued this theme when he asked
Officer Jose Dorsey, who shot defendant, whether defendant had done anything wrong or was
under arrest before he began resisting Officer Dorsey. The prosecutor asked Officer Dorsey to
describe his duties to investigate and to take control at a crime scene.
The prosecutor’s closing remarks were based on the evidence and in response to
defendant’s theory that the police officers acted improperly at the scene. His comments were not
an improper attempt to appeal to the jurors’ sense of civic duty. Given that “defense counsel is
not required to make a meritless motion or a futile objection,” People v Goodin, 257 Mich App
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425, 433; 668 NW2d 392 (2003), the failure to object did not result in defendant being denied
the effective assistance of counsel, People v Effinger, 212 Mich App 67, 69; 536 NW2d 809
(1995).
III. Substitution of Counsel
Defendant next argues that the trial court erred in denying his request for substitution of
counsel and consequently deprived him of the effective assistance of counsel. We disagree. “A
trial court’s decision regarding substitution of counsel will not be disturbed absent an abuse of
discretion.” People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). “An indigent
defendant is guaranteed the right to counsel; however, he is not entitled to have the attorney of
his choice appointed simply by requesting that the attorney originally appointed be replaced.”
People v Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991). “Appointment of a substitute
counsel is warranted only upon a showing of good cause and where substitution will not
unreasonably disrupt the judicial process.” Id. “Good cause exists where a legitimate difference
of opinion develops between a defendant and his appointed counsel with regard to a fundamental
trial tactic.” Id. A defendant’s assertions that he lacks confidence in his trial counsel are not
good cause to substitute counsel. Traylor, supra at 463.
Defendant asserts the trial court failed to investigate his conflicts with defense counsel
and appoint substitute counsel. But defendant has failed to provide support in the record for his
claim and “may not leave it to this Court to search for a factual basis to sustain or reject his
position.” Id. at 464. Nonetheless, it appears that the trial court addressed defendant’s claims
during the February 18, 2005, pretrial conference when defendant asserted his complaints and
the trial court explained to defendant that defense counsel appropriately requested a criminal
responsibility report and could not proceed until after the criminal responsibility report had been
completed. Defendant also asserted that defense counsel failed to secure videotape recordings of
the incident. However, the record indicates that defense counsel was not only aware of their
existence, but also stipulated at trial that the incident was not discernable on the videotapes.
Regarding defense counsel’s statement about defendant’s likelihood of success at trial, this was
merely an expression of defense counsel’s opinion and had no bearing on trial strategy. On this
record, we conclude that defendant did not show good cause for appointment of substitute
counsel. Therefore, the trial court did not err in denying defendant’s request for substitute
counsel nor did the trial court deprive defendant of his right to the effective assistance of
counsel.
IV. Jury
Defendant next argues that he was denied his right to a fair trial because the jury was not
drawn from a cross-section of the community. However, as in People v McKinney, 258 Mich
App 157, 161; 670 NW2d 254 (2003), defendant did not properly preserve a challenge to the jury
array and, because there is no evidence in the lower court record to support defendant’s
argument, we have “no means of conducting a meaningful review of defendant’s allegations on
appeal.” Id. at 161-162.
Defendant also contends that he was denied his constitutional right to an impartial jury
when the prosecutor used two peremptory challenges to strike African-American jurors. The
Equal Protection Clause guarantees to a defendant a jury whose members are selected by
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nondiscriminatory methods. Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69
(1986). The burden initially is on the defendant to make out a prima facie case of purposeful
discrimination. Id. at 93-94. In deciding whether the defendant has made a requisite showing of
purposeful discrimination, a court must consider all relevant circumstances, including whether
there is a pattern of strikes against African-American jurors, and the questions and statements
made by the prosecutor during voir dire and in exercising his challenges. Id. at 97. If a
defendant makes such a prima facie showing of a discriminatory purpose, the burden shifts to the
prosecutor to articulate a racially neutral explanation for challenging African-American jurors.
Here, defendant, who did not object to the jury selection process at trial, has failed to
establish purposeful discrimination. Even assuming that the prosecutor did remove two AfricanAmerican jurors, which is not reflected by the record, the mere fact that a party uses one or more
peremptory challenges to excuse minority members from a jury venire is insufficient to establish
a prima facie showing of discrimination. Clarke v K Mart Corp, 220 Mich App 381, 383; 559
NW2d 377 (1996); People v Williams, 174 Mich App 132, 137; 435 NW2d 469 (1989). “That
the prosecutor did not try to remove all blacks from the jury is strong evidence against a showing
of discrimination.” Williams, supra at 137. Further, neither the prosecutor’s statements nor
questions demonstrate purposeful discrimination. Because this record does not establish a prima
facie showing of purposeful discrimination, we cannot conclude that defendant was denied his
constitutional right to an impartial jury by the prosecutor’s peremptory challenges.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
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