PEOPLE OF MI V DANIEL LEE COOK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 28, 2006
Plaintiff-Appellee,
V
No. 261850
Genesee Circuit Court
LC Nos. 04-014804-FC; and
05-015598-FH
DANIEL LEE COOK,
Defendant-Appellant.
Before: Wilder, P.J., and Kelly and Borrello, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of two counts of armed robbery, MCL
750.529, two counts of assault with intent to do great bodily harm less than murder, MCL
750.84, one count of felonious assault, MCL 750.82, and one count of first-degree home
invasion, MCL 750.110a(2). He was sentenced as an habitual offender, third offense, MCL
769.11, to concurrent prison terms of 300 to 600 months for the robbery convictions, 84 to 240
months for the assault with intent to do great bodily harm conviction, 180 to 480 months for the
home invasion conviction, and 36 to 96 months for the felonious assault conviction. He appeals
as of right. We affirm.
Defendant’s convictions arise from two separate incidents in which three men first
assaulted Bradley Coffell and then shortly thereafter entered the home of Stacey Metcalfe, where
they robbed and assaulted both Metcalfe and Anthony Hilbers. Defendant was charged in both
offenses along with codefendants Jamie Huff and Lawrence King. Huff and King both entered
guilty pleas and King testified against defendant at trial. The principal issue at trial was
defendant’s identification as a participant in the offenses.
I
Defendant first argues that trial counsel was ineffective for not calling codefendant Huff
and another person, Matthew Parkinson, as witnesses at trial. Although defendant filed a pro se
motion for a new trial in which he argued that defense counsel was ineffective for not calling
Huff as a witness, he did not raise any issue involving counsel’s failure to call Parkinson, or
request an evidentiary hearing. The trial court determined that counsel’s failure to call Huff was
not prejudicial because Huff had implicated defendant in the offenses at Huff’s plea hearing.
Because defendant did not raise any issue involving Parkinson and no evidentiary hearing was
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held on this claim below, our review is limited to errors apparent on the existing record. People
v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
To establish ineffective assistance of counsel, defendant must show that counsel’s
performance fell below an objective standard of reasonableness, and that the representation so
prejudiced defendant that he was denied a fair trial. People v Pickens, 446 Mich 298, 338; 521
NW2d 797 (1994). Defendant must overcome the presumption that the challenged action might
be considered sound trial strategy. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315
(1991). To establish prejudice, defendant must show that there is a reasonable probability that,
but for counsel’s error, the result of the proceeding would have been different. People v Johnnie
Johnson, Jr, 451 Mich 115, 124; 545 NW2d 637 (1996). The burden is on defendant to produce
factual support for his claim of ineffective assistance of counsel. People v Hoag, 460 Mich 1, 6;
594 NW2d 57 (1999).
Decisions regarding what evidence to present and whether to call witnesses are presumed
to be matters of trial strategy. People v Marcus Davis, 250 Mich App 357, 368; 649 NW2d 94
(2002). A defendant is entitled to have his counsel prepare, investigate, and present all
substantial defenses. Where there is a claim that counsel was ineffective for failing to raise a
defense, the defendant must show that he made a good-faith effort to avail himself of the right to
present a particular defense and that the defense of which he was deprived was substantial. A
substantial defense is one that might have made a difference in the trial’s outcome. People v
Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990).
Defendant has presented notorized statements from both Huff and Parkinson in which
both state that Rusty Thompson, not defendant, committed the charged offenses along with Huff
and King. But there is no indication in the record that defense counsel was aware that these
witnesses were willing to testify to these facts at defendant’s trial. Although defense counsel
was aware of Huff, who was named as a possible witness by the prosecution, Huff was also
named as a codefendant. Huff ultimately pleaded guilty and the trial court, which presided at
Huff’s plea hearing, observed that Huff had implicated defendant in the offenses at the hearing.
On this record, there is no basis to conclude that defense counsel acted unreasonably by failing to
call Huff at defendant’s trial, or that Huff’s absence deprived defendant of a substantial defense.
Although Parkinson’s statement indicates that he advised defendant that he was willing to testify
at defendant’s trial, there is no indication in the record, nor has defendant shown, that he ever
advised counsel of Parkinson’s existence or made a good-faith effort to avail himself of a
defense based on Parkinson’s testimony. In the absence of any evidence to this effect, this Court
cannot conclude that defense counsel was ineffective for failing to call Parkinson as a witness.
People v Rockey, 237 Mich App 74, 77; 601 NW2d 887 (1999).
Defendant also asks this Court to remand this matter for an evidentiary hearing. We
decline to do so. This Court will not require a trial court to conduct a hearing regarding the
effective assistance of counsel without a proper offer of proof. See People v Simmons, 140 Mich
App 681, 685-686; 364 NW2d 783 (1985). Here, defendant has failed to make a proper offer of
proof demonstrating that he made a good-faith attempt to avail himself of a defense based on
testimony from these witnesses.
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II
Next, defendant argues that his two convictions for armed robbery and felonious assault
against Stacey Metcalfe violate his double jeopardy protections against multiple punishments for
the same offense. We disagree.
Under the double jeopardy protections afforded by both the United States and Michigan
constitutions, a defendant may not be subject to multiple punishments for the same offense. US
Const, Am V; Const 1963, art 1, § 15. People v Price, 214 Mich App 538, 541; 543 NW2d 49
(1995). The elements of felonious assault are included within armed robbery for purposes of
double jeopardy analysis. People v Yarbrough, 107 Mich App 332, 335-336; 309 NW2d 602
(1981). But an assault may be punished separately from an armed robbery where the facts
clearly establish that the offenses occurred at separate times. Id. at 336.
In this case, defendant’s armed robbery conviction against Metcalfe arose from an assault
with a screwdriver, during which defendant and his accomplices demanded Metcalf’s money and
jewelry. The evidence showed that after the robbery was completed, a codefendant separately
assaulted Metcalfe with a hot curling iron. The jury was instructed on aiding and abetting and,
therefore, properly could have convicted defendant of this separate assault under an aiding and
abetting theory. Because the facts establish that the two offenses occurred at separate times,
defendant has not established that he was subjected to multiple punishments for the same
offense. See People v Richard Johnson, 94 Mich App 388, 391; 288 NW2d 436 (1979).
III
Defendant next argues that the trial court erroneously instructed the jury, consistent with
CJI2d 3.4, that it could only consider evidence of a prior conviction for the limited purpose of
determining if he was a truthful witness. Defense counsel included this instruction with his
proposed jury instructions, but did not withdraw it after defendant elected not to testify and there
was no objection to the instruction when it was given. Therefore, this issue is unpreserved and
our review is limited to plain error affecting defendant’s substantial rights. People v Carines,
460 Mich 750, 761-767; 597 NW2d 130 (1999).
Because defendant never testified, the trial court’s instruction based on CJI2d 3.4 was
plain error. We conclude, however, that the instruction did not affect defendant’s substantial
rights. First, no evidence was ever presented that defendant had a prior conviction, and the trial
court instructed the jury that it was to base its verdict only on the evidence properly admitted at
trial. This instruction was sufficient to protect defendant’s rights. People v Gonzalez, 256 Mich
App 212, 225; 663 NW2d 499 (2003). Secondly, although defendant argues that the instruction
was prejudicial because it alerted the jury that he had a prior criminal history, defendant
presented evidence that he was incarcerated on an unrelated matter before he was considered a
suspect in these offenses. In light of this evidence, we are not persuaded that defendant was
unduly prejudiced by the court’s instruction referring to an unnamed conviction.
For these reasons, this unpreserved issue does not require reversal.
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IV
Defendant next argues that he is entitled to be resentenced because the trial court’s
scoring of the sentencing guidelines was based on facts not found by the jury, contrary to Blakely
v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004). We disagree. Neither
Blakely, nor the more recent decision in United States v Booker, 543 US 220; 125 S Ct 738; 160
L Ed 2d 621 (2005), apply to Michigan’s indeterminate sentencing scheme. People v Drohan,
475 Mich 140, 143, 154-156, 164; 715 NW2d 778 (2006); People v Claypool, 470 Mich 715,
730 n 14; 684 NW2d 278 (2004). Therefore, resentencing is not warranted.
V
In a supplemental pro se brief, defendant requests this Court to remand this case for an
evidentiary hearing on several additional claims of ineffective assistance of counsel. We decline
to do so because defendant’s claims either lack merit or have not been supported with an
appropriate offer of proof showing what evidence defendant would present at an evidentiary
hearing. This Court will not require a trial court to conduct a hearing regarding the effective
assistance of counsel without a proper offer of proof. See Simmons, supra.
There is no merit to defendant’s argument that Hilbers’s photographic identification
should have been suppressed for lack of counsel. Because defendant was not in custody for this
offense and criminal proceedings had not yet commenced at the time of the photographic
identification, defendant was not entitled to counsel. People v Hickman, 470 Mich 602, 611; 684
NW2d 267 (2004); People v Kurylczyk, 443 Mich 289, 302, 318; 505 NW2d 528 (1993).
Furthermore, even if Hilbers’s photographic identification procedure could be considered
suggestive, defendant was not prejudiced by counsel’s failure to seek suppression on this basis.
Other witnesses identified defendant as being involved in the offenses. Moreover, Hilbers
admitted at trial that his identification of defendant in the photographic lineup was influenced by
the fact that defendant was wearing a hooded sweatshirt, and Hilbers also admitted that he was
not positive about his identification of defendant as a suspect. Because defendant’s identification
was established by other witnesses and the jury was already aware that Hilbers’s identification of
defendant was questionable, there is no reasonable probability that the outcome would have been
different had Hilbers’s identification testimony been suppressed.
The circumstances involving the corporeal lineup at which Bradley Coffell identified
defendant was a matter of record at trial, and there is no basis in the record for concluding that
the lineup was impermissibly suggestive. Also, defendant has not overcome the strong
presumption that counsel exercised sound trial strategy by not requesting the appointment of an
expert witness on eyewitness identification testimony.
Nor are we persuaded that counsel was ineffective for failing to impeach prosecution
witnesses with prior inconsistent statements. Some of the statements identified by defendant
were not inconsistent with the witnesses’ trial testimony and other statements involve
insubstantial matters that would not have affected the outcome.
The record does not support defendant’s claim that the prosecutor failed to produce a
photograph of defendant during discovery. Also, because the jury heard evidence that
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defendant’s appearance had changed since the time of the offense, defendant was not prejudiced
by the prosecutor’s comment about changes in defendant’s appearance.
VI
Next, defendant argues that there was insufficient evidence to convict him of armed
robbery of Stacey Metcalfe because there was no evidence that he took items from Metcalfe or
assaulted her with a weapon. We disagree.
An appellate court’s review of the sufficiency of the evidence to sustain a conviction
should not turn on whether there was any evidence to support the conviction, but whether there
was sufficient evidence to justify a rational trier of fact in finding the defendant guilty beyond a
reasonable doubt. People v Wolfe, 440 Mich 508, 513; 489 NW2d 748 (1992), amended 441
Mich 1201 (1992). The evidence must be viewed in a light most favorable to the prosecution.
Id. at 514-515.
Armed robbery involves “(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. At the time of this offense in February 2004, MCL 750.529
provided that an armed robbery occurs when the defendant possesses “a dangerous weapon, or
any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it
to be a dangerous weapon.”1 See People v Norris, 236 Mich App 411, 414-415; 600 NW2d 658
(1999). Armed robbery is a specific intent crime that requires proof that the defendant intended
to permanently deprive the victim of property. People v Parker, 230 Mich App 337, 344; 584
NW2d 336 (1998).
The jury was also instructed on aiding and abetting. To convict a defendant under an
aiding and abetting theory, the prosecution must show that (1) the crime charged was committed
by the defendant or another person, (2) the defendant performed acts or gave encouragement that
assisted in the commission of the crime, and (3) the defendant intended the commission of the
crime or had knowledge that the principal intended its commission at the time he gave aid and
encouragement. Carines, supra.
There is no merit to defendant’s argument that the evidence failed to show that he
assaulted Metcalfe while armed with a weapon. Metcalfe testified that when the three men
entered her bedroom, defendant and Huff both held her down on the bed while defendant held a
screwdriver to Hilbers’s neck and told him not to move or he would kill Hilbers or both of them.
Metcalfe and Hilbers were both told to give defendant their money. This evidence was sufficient
to enable the jury to find beyond a reasonable doubt that defendant assaulted Metcalfe while
armed with a dangerous weapon.
Defendant also argues that the evidence did not show that he personally took any items
from Metcalfe. It was apparent from Metcalfe’s testimony that codefendant Huff obtained
1
MCL 750.529 was amended by 2004 PA 128, effective July 1, 2004. The amendment does not
apply to this case, which involves crimes committed in February 2004.
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Metcalfe’s jewelry. But the evidence clearly showed that defendant and Huff were acting in
concert and the jury properly could find that defendant’s conduct aided and abetted Huff in the
taking of Metcalfe’s property.
Thus, the evidence was sufficient to support defendant’s armed robbery conviction
involving Metcalfe.
VII
Defendant argues that the trial court erred when it admitted a photograph of him that was
taken in October 2001. This Court reviews a trial court’s decision to admit evidence for an
abuse of discretion. People v Washington, 468 Mich 667, 670-671; 664 NW2d 203 (2003).
Defendant objected to the photograph only on the ground of relevancy. Defendant’s theory at
trial was that he was mistakenly identified for Russell (Rusty) Thompson, whom some of the
witnesses stated looked like one of the suspects. The prosecution offered the photograph to show
that defendant previously bore an appearance similar to Thompson. In light of the defense
theory, the trial court did not abuse its discretion in determining that the photograph was relevant
to the issue of identification. MRE 401, 402; People v Campbell, 236 Mich App 490, 503; 601
NW2d 114 (1999).
Defendant further argues that the photograph should have been excluded because its
probative value was substantially outweighed by the danger of unfair prejudice. MRE 403;
People v Sabin (After Remand), 463 Mich 43, 57-58; 614 NW2d 888 (2000). Because defendant
did not object on this ground below, our review of this issue is limited to plain error affecting
defendant’s substantial rights. Carines, supra at 761-767; People v Stimage, 202 Mich App 28,
30; 507 NW2d 778 (1993). Although defendant argues that the photograph is unduly prejudicial
because it depicts him wearing prison attire, our review of the photo discloses that it merely
depicts him wearing a dark, collared shirt, and that there is nothing about the shirt that suggests it
is prison attire. Thus, we find no merit to this issue.
Defendant next argues that his constitutional right to a speedy trial was violated when the
trial court adjourned the trial of the case involving Metcalfe and Hilbers so that it could be joined
for trial with the case involving Coffell.
A defendant has the constitutional right to a speedy trial. US Const, Ams VI and XIV;
Const 1963, art 1, § 20; People v Mackle, 241 Mich App 583, 602; 617 NW2d 339 (2000). In
deciding whether a defendant’s right to a speedy trial was violated, this Court considers “(1) the
length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right to a
speedy trial, and (4) any prejudice to the defendant.” People v Gilmore, 222 Mich App 442, 459;
564 NW2d 158 (1997). A delay of more than 18 months is presumed to be prejudicial and the
prosecution bears the burden of proving lack of prejudice to the defendant. Id. Because the
delay in this case was less than 18 months, the burden was on defendant to show prejudice as a
result of the delay. People v Daniel, 207 Mich App 47, 51; 523 NW2d 830 (1994). There are
two types of prejudice involved in the right to a speedy trial, prejudice to the person and
prejudice to the defense. People v Wickham, 200 Mich App 106, 112; 503 NW2d 701 (1993).
General allegations of prejudice (such as witnesses’ memories fading over time) are insufficient
to establish that a defendant was denied the right to a speedy trial. Gilmore, supra at 462.
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The delay in this case was, at most, less than seven months, and the adjournment of the
original trial date was less than a month to enable to the two related cases to be tried together.
Defendant failed to establish any prejudice resulting from the short delay. The trial court
properly determined that defendant’s right to a speedy trial was not violated.
Defendant also argues that the trial court violated the 180-day rule, MCL 780.131,
because trial did not commence within that period of time. We disagree. The purpose behind
the 180-day rule is to require that prosecutors bring all pending charges against prison inmates so
that a defendant has the opportunity to serve his sentences concurrently. People v Smielewski,
235 Mich App 196, 198; 596 NW2d 636 (1999); People v McCullum, 201 Mich App 463, 465;
507 NW2d 3 (1993). As applied to this case, MCR 6.004(D) set forth the requirements for the
180-day rule:2
(D) Untried Charges Against State Prisoner.
(1) The 180-Day Rule. Except for crimes exempted by MCL 780.131(2),
the prosecutor must make a good faith effort to bring a criminal charge to trial
within 180 days of either of the following:
(a) the time from which the prosecutor knows that the person charged with
the offense is incarcerated in a state prison or is detained in a local facility
awaiting incarceration in a state prison, or
(b) the time from which the Department of Corrections knows or has
reason to know that a criminal charge is pending against a defendant incarcerated
in a state prison or detained in a local facility awaiting incarceration in a state
prison.
For purposes of this subrule, a person is charged with a criminal offense if
a warrant, complaint, or indictment has been issued against the person.
In People v Cleveland Williams, 475 Mich 245, 257-259; 716 NW2d 208 (2006), our
Supreme Court explained that the foregoing version of MCR 6.004(D) was inaccurate because it
did not properly reflect the language of MCL 780.131, which provides:
(1) Whenever the department of corrections receives notice that there is
pending in this state any untried warrant, indictment, information, or complaint
setting forth against any inmate of a correctional facility of this state a criminal
offense for which a prison sentence might be imposed upon conviction, the
inmate shall be brought to trial within 180 days after the department of
corrections causes to be delivered to the prosecuting attorney of the county in
which the warrant, indictment, information, or complaint is pending written notice
of the place of imprisonment of the inmate and a request for final disposition of
2
MCR 6.004(D) was amended, effective January 1, 2006. Those revisions are not applicable to
this case.
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the warrant, indictment, information, or complaint. The request shall be
accompanied by a statement setting forth the term of commitment under which
the prisoner is being held, the time already served, the time remaining to be
served on the sentence, the amount of good time or disciplinary credits earned, the
time of parole eligibility of the prisoner, and any decisions of the parole board
relating to the prisoner. The written notice and statement shall be delivered by
certified mail.
(2) This section does not apply to a warrant, indictment, information, or
complaint arising from either of the following:
(a) A criminal offense committed by an inmate of a state correctional
facility while incarcerated in the correctional facility.
(b) A criminal offense committed by an inmate of a state correctional
facility after the inmate has escaped from the correctional facility and before he or
she has been returned to the custody of the department of corrections. [Emphasis
added.]
Here, although the parties agree that defendant was on parole at the time of this offense,
Cleveland Williams overruled previous decisions that had held that the 180-day rule does not
apply where a defendant commits a crime while on parole. Cleveland Williams, supra at 249,
254-255. However, the Cleveland Williams Court gave its decision limited retroactive effect,
applying it only to cases pending on appeal in which this issue has been raised and preserved. Id.
at 255. Here, because this issue was not properly raised and preserved, Cleveland Williams (and
its overruling of previous decisions that had held that the 180-day rule does not apply where a
defendant commits a crime while on parole) does not apply to this case. Id. Furthermore, there
appears to be no dispute that defendant was only being held in the county jail while awaiting trial
in this matter, and was not an inmate of a state correctional facility, so the 180-day rule does not
apply to him. MCL 780.131.
VIII
Defendant next argues that the prosecutor violated his due process rights by charging him
in the assault on Coffell. Defendant maintains that he was selectively prosecuted for that offense
and that the charge was added in retaliation for his decision to proceed to trial in the case
involving Metcalfe and Hilbers, unlike codefendants King and Huff who entered guilty pleas and
were not subject to the same charge. Because defendant did not raise this due process argument
in the trial court, our review is limited to plain error affecting defendant’s substantial rights.
Carines, supra.
The authority to decide what charges to prosecute is vested solely and exclusively with
the prosecutor. People v Stacey Jones, 252 Mich App 1, 6; 650 NW2d 717 (2002). The decision
whether to dismiss a case or proceed to trial ultimately rests in the sole discretion of the
prosecutor. Id. at 7. A trial court may only review the prosecutor’s charging decision to
determine if the decision is unconstitutional, ultra vires, or illegal. Id. at 6-7. Otherwise, the
prosecutor’s decision is exempt from judicial review. Id. at 7.
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It can be a violation of due process to punish a defendant for asserting his constitutional
right to trial by adding charges after the defendant refuses to accept a plea agreement. Id.
Prosecutorial vindictiveness sufficient to find such a constitutional violation can be either
presumed or actual. Id.
“Actual vindictiveness will be found only where objective evidence of an
‘expressed hostility or threat’ suggests that the defendant was deliberately
penalized for his exercise of a procedural, statutory, or constitutional right.”
[People v Ryan, 451 Mich 30, 36; 545 NW2d 612 (1996)], quoting United States
v Gallegos-Curiel, 681 F2d 1164, 1168 (CA 9, 1982). The burden is on the
defendant to demonstrate actual prejudice. Ryan, supra at 36 .
The Ryan Court stated that “[t]he mere threat of additional charges during
plea negotiations does not amount to actual vindictiveness where bringing the
additional charges is within the prosecutor’s charging discretion.” Id. at 36.
Additionally, regarding presumptive vindictiveness, this Court held that “it is well
established that the mere fact that a defendant refuses to plead guilty and forces
the government to prove its case is not sufficient to warrant presuming that
subsequent changes in the charging decision are vindictive and therefore violative
of due process.” People v Goeddeke, 174 Mich App 534, 536; 436 NW2d 407
(1988) (emphasis added). The “[d]ismissal of a lesser charge and rearrest on a
newly filed greater charge due to a defendant’s failure to plead guilty to the lesser
charge does not, by itself, constitute prosecutorial vindictiveness and denial of
due process of law.” Id. at 537. Accordingly, the defendant must affirmatively
prove actual vindictiveness in order to establish that there was a denial of due
process. Id. [Jones, supra at 7-8.]
In this case, there is nothing in the record that objectively shows any clear connection
between the plea agreement offered to defendant in the case involving Metcalfe and Hilbers and
the filing of the new charge in the case involving Coffell. The case involving the assault against
Coffell was delayed because of difficulty securing Coffell for a lineup. Regardless of whether
the prosecutor exercised due diligence in attempting to locate Coffell sooner, defendant has not
met his burden of proving actual vindictiveness arising from the new charge involving the assault
against Coffell.
Nor is there support for defendant’s claim of selective prosecution under the Equal
Protection Clause. “Selective prosecution claims require proof of intentional or purposeful
discrimination.” People v Weathersby, 204 Mich App 98, 114-115; 514 NW2d 493 (1994).
Defendant has not identified any evidence that his prosecution was based on his race, religion, or
some other arbitrary classification. Oakland Co Prosecutor v 46th Dist Judge, 76 Mich App
318, 331; 256 NW2d 776 (1977).
We likewise find no support in the record for defendant’s claim that the state did not
conduct a fair investigation of other possible suspects before charging him.
In sum, defendant has not met his burden of showing plain error arising from the
prosecutor’s charging decisions or the police investigation.
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IX
Defendant lastly argues that the cumulative effect of many errors in this case denied him
a fair trial. Only actual errors may be aggregated to determine if the cumulative effect of the
errors denied the defendant a fair trial. People v LeBlanc, 465 Mich 575, 591; 640 NW2d 246
(2002); People v Taylor, 185 Mich App 1, 10; 460 NW2d 582 (1990). In this case, defendant
has not established that multiple errors occurred at his trial. Thus, he was not denied a fair trial
because of cumulative error.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
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