PEOPLE OF MI V MALIK HANNA DABABNEH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 23, 2008
Plaintiff-Appellee,
v
No. 278537
Lapeer Circuit Court
LC No. 06-008958-FH
MALIK HANNA DABABNEH,
Defendant-Appellant.
Before: Meter, P.J., and Talbot and Murray, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction of larceny in a building, MCL 750.360.
We affirm.
Complainant Misty Johnson used a powered cart, known as an Amigo and provided by
the store, to shop at Meijer. After Johnson left the store, she realized that she did not have her
change purse. Johnson returned to the store and looked for the purse in the area in which she had
parked the Amigo, but could not locate the purse. Store security videos depicted defendant in a
checkout lane next to Johnson, walking to the area in which Johnson parked the Amigo, and then
bending over and apparently retrieving something from that area. Defendant was still visible in
the area when Johnson returned to the store to look for her purse. The video showed that
defendant made no attempt to give anything to Johnson at that time.
The next day, Johnson’s purse appeared at a high school basketball tournament.
Defendant’s daughter was at the tournament and turned in the purse at the direction of her
mother. The purse eventually made its way back to Johnson, who reported that cash and
documents were missing from the purse. She soon discovered that the cash had been taken by
her husband, but she did not immediately reveal this fact to the police or prosecutors.
Defendant first argues that there was insufficient evidence to support his conviction or,
alternatively, that his conviction was against the great weight of the evidence. We disagree. To
determine whether there was sufficient evidence to support a conviction, we review the evidence
de novo, “in a light most favorable to the prosecution[,] and determine whether any rational trier
of fact could have found that the essential elements of the crime were proven beyond a
reasonable doubt.” People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999) (internal
citation and quotation marks omitted). We review a trial court’s decision on a motion for a
directed verdict de novo to determine whether the evidence presented by the prosecution, viewed
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in the light most favorable to the prosecution, could convince a rational trier of fact that the
essential elements of the charged offense were proven beyond a reasonable doubt. People v
Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001).
The elements of larceny in a building are (1) the actual or constructive taking of
goods or property, (2) a carrying away or asportation, (3) the carrying away must
be with a felonious intent, (4) the goods or property must be the personal property
of another, (5) the taking must be without the consent and against the will of the
owner, and (6) the taking must occur within the confines of the building. [People
v Randolph, 242 Mich App 417, 421-422; 619 NW2d 168 (2000), rev’d in part on
other grounds 466 Mich 532 (2002).]
Johnson testified that she had the change purse on her lap and that she stood up from the
Amigo before exiting the building. It would be a reasonable inference that the purse fell out of
her lap onto the floor. The video showed defendant leaning over as if to pick something up from
the floor right next to the Amigo Johnson had just vacated before exiting the building. It is a
reasonable inference that defendant picked up Johnson’s change purse. The video showed that
defendant stayed in the area when Johnson returned and began looking for the purse. It is
reasonable to infer that defendant saw this and, given the area where Johnson was looking, that
he would conclude that the purse he just picked up probably belonged to her. The fact that
defendant did not offer the purse to Johnson or turn it in to anyone at Meijer supports a
reasonable inference that he did not intend to return it to her. Thus, there was sufficient evidence
to establish that defendant committed larceny in a building. Likewise, viewing the facts in the
light most favorable to the prosecution, the verdict was not against the great weight of the
evidence, see People v Lemmon, 456 Mich 625, 642; 576 NW2d 129 (1998), and, contrary to
defendant’s argument, it would not be “manifestly unjust” to allow the verdict to stand.
Next, defendant argues that he was denied the effective assistance of counsel because
counsel’s decision to call defendant’s daughter as a witness provided the only direct link between
defendant and Johnson’s purse. We disagree. Where, as here, there was no evidentiary hearing
below concerning the issue, appellate review of a defendant’s claim of ineffective assistance of
counsel is limited to the existing record. People v Odom, 276 Mich App 407, 415; 740 NW2d
557 (2007).1
The right to counsel is guaranteed by the United States and Michigan Constitutions. US
Const, Am VI; Const 1963, art 1, § 20. A defendant must show that (1) counsel’s performance
fell below an objective standard of reasonableness under professional norms, and (2) there is a
reasonable probability that, if not for counsel’s errors, the result would have been different, and
the result that did occur was fundamentally unfair or unreliable. Strickland v Washington, 466
US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 309,
312-313; 521 NW2d 797 (1994); People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294
(2001). There is a strong presumption of effective counsel when it comes to issues of trial
1
We decline defendant’s suggestion that we remand this case for an evidentiary hearing.
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strategy. People v Mitchell, 454 Mich 145, 156; 560 NW2d 600 (1997). An appellate court will
not second-guess matters of strategy or use the benefit of hindsight when assessing counsel’s
competence. People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).
Defendant claims that counsel’s decision to call defendant’s daughter to testify that
defendant’s wife gave her the change purse to turn in the next day established the only definite
link between the change purse and defendant, and destroyed any defense that depended on a
claim that defendant did not take the purse. However, this assertion ignores the fact that during
opening argument, defense counsel clearly indicated that defendant would be arguing that he
acted as a Good Samaritan. Then during closing argument, defense counsel argued that
defendant did not intend to keep the purse. Given this theory of defense, it was not ineffective
for counsel to call defendant’s daughter to establish that the turning in of the wallet the next day
was intentional. That this strategy did not result in defendant’s acquittal does not make defense
counsel ineffective. Counsel is not ineffective for pursuing a strategy that ultimately fails.
People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2001).
Next, defendant argues that he was denied his due process right to present a defense by
the trial court’s refusal to allow defendant’s wife to testify after defendant failed to include her
on his witness list before trial. However, with no offer of proof regarding how defendant’s wife
would have testified, appellate review of this issue is precluded. Hashem v Les Stanford
Oldsmobile, Inc, 266 Mich App 61, 94; 697 NW2d 558 (2005); MRE 103(a)(2).
Next, defendant argues that the prosecutor committed misconduct requiring reversal by
inviting the jurors to put themselves in defendant’s shoes and ask what they would do in the
same situation, by accusing defendant of putting Johnson on trial simply by cross-examining her,
and by alluding to defendant’s failure to testify in closing argument. We disagree.
Defendant did not object to the alleged prosecutorial misconduct, and thus we review this
issue using the plain-error standard. People v Callon, 256 Mich App 312, 329; 662 NW2d 501
(2003). To warrant reversal, any error must have been outcome-determinative. See id. Also,
“[r]eversal is warranted only when plain error resulted in the conviction of an actually innocent
defendant or seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Id.
First, defendant claims that it was misconduct for the prosecutor, during his opening
statement, to ask the jurors:
what would you have done if you found a purse . . . and then compare what a
reasonable person you as jurors as a reasonable person would have done and
compare it to the actions of the Defendant, because . . . there will be no evidence
in this case introduced to show that he took any effort whatsoever to get this purse
back to Misty Johnson.
Defendant claims that this comment impermissibly put the jurors in defendant’s shoes.
However, the prosecutor was simply asking the jurors to use their common sense and experience.
See People v Lawton, 196 Mich App 341, 355; 492 NW2d 810 (1992), and CJI2d 3.6(2). No
misconduct occurred in this instance.
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Second, the prosecutor, on redirect examination of Johnson, asked Johnson leading
questions that suggested that defense counsel’s cross-examination had made her feel as if she
were the person on trial. However, defense counsel did no more than subject Johnson to a
vigorous cross-examination, emphasizing her initial concealment of the fact that her husband had
taken the money from the purse. Such cross-examination was perfectly proper, because it
questioned Johnson’s credibility on an issue of central significance to this case. This was
certainly not putting Johnson “on trial,” and we believe that characterizing it as such constituted
an impermissible attempt to garner sympathy for Johnson. See People v Watson, 245 Mich App
572, 591; 629 NW2d 411 (2001). Nevertheless, the strongest evidence against defendant was the
store video and his daughter’s testimony. Therefore, this misconduct did not rise to the level of
plain error resulting “in the conviction of an actually innocent defendant” and did not “seriously
affect[] the fairness, integrity, or public reputation of judicial proceedings.” Callon, supra at
329.
Finally, we do not agree with the claim that the prosecutor’s statement during closing
argument that he “believe[d] . . . [d]efendant is going to get up here and testify he didn’t see
Misty Johnson” and that he thought “that’s going to be one of the defenses here” was misconduct
because it constituted improper comment on defendant’s right to remain silent. The prosecutor
made the comment during closing argument, when it was clear there would be no more
testimony. It seems more likely that the comment was an inartful way of saying that defendant’s
closing argument would be that defendant did not see Johnson, and that it had nothing to do with
defendant’s testimony or lack thereof. Furthermore, the jury was instructed that it was not to
hold defendant’s lack of testimony against him. A jury is presumed to follow its instructions,
People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998), and reversal is not required where
an instruction alleviates any prejudicial effect, Callon, supra at 329-330. Thus, there was no
prosecutorial misconduct requiring reversal.
Next, defendant argues that the trial court erred by admitting into evidence a DVD copy
of videos recorded from the Meijer security cameras because this was not the original recording
and was not complete because it was edited for time. We disagree. We review a trial court’s
decision to admit evidence for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596
NW2d 607 (1999).
MRE 1003 provides: “A duplicate is admissible to the same extent as an original unless
(1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it
would be unfair to admit the duplicate in lieu of the original.” The trial court found that the
DVD was admissible because it was authenticated by the Meijer employee who compiled it as an
accurate representation of the footage from the security cameras. There was no evidence
introduced that suggested that the DVD images did not represent what was recorded from the
cameras at Meijer. Also, there was nothing unfair about using the duplicate file rather than the
original. As the trial court noted, it would have been unduly cumbersome to bring the recording
hardware from Meijer into the courtroom. With regard to the edits for time, defendant does not
sufficiently indicate the relevance of showing video that did not cover the time when he and
Johnson were paying and exiting the store.
Finally, defendant argues that the trial court erred by dismissing a juror without proper
cause or justification, denying defendant his right to have his case decided by the jury that was
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selected. We disagree. We review a trial court’s decision to remove a juror for an abuse of
discretion. People v Tate, 244 Mich App 553, 559; 624 NW2d 524 (2001).
MCL 768.18 provides, in part, that “[s]hould any condition arise during the trial of the
cause which in the opinion of the trial court justifies the excusal of any of the jurors so
impaneled from further service, he may do so and the trial shall proceed, unless the number of
jurors be reduced to less than 12.” This does not give a judge the “arbitrary power to excuse the
extra jurors according to his own inclinations.” People v Van Camp, 356 Mich 593, 604-605; 97
NW2d 726 (1959). Rather, “[t]here must be factual justification under the statute similar in
character to that which would authorize excusal of a member of a jury panel.” Id.
During jury voir dire, the prospective jurors were asked if any of them had “ever been
accused or prosecuted as a result of any criminal charges.” Juror number 2 did not raise his
hand. Subsequently, in mid-trial, the prosecutor discovered that juror number 2 had a number of
misdemeanor convictions and that the juror had failed to reveal that his son had been charged
with and acquitted of second-degree murder. Notwithstanding that juror number 2 stated that
nothing from his past would prevent him from rendering a fair and impartial verdict, the trial
court granted the prosecution’s request and removed juror number 2 from the jury.
Defendant claims that the trial court acted improperly because, as the trial court admitted,
the juror would not have been excluded for cause during voir dire. However, it is clear that the
prosecutor would have used a peremptory challenge had the juror been candid. Under the
circumstances, the trial court did not abuse its discretion by dismissing the juror.
Affirmed.
/s/ Patrick M. Meter
/s/ Michael J. Talbot
/s/ Christopher M. Murray
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