PEOPLE OF MI V JAMES DRAIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 20, 2009
Plaintiff-Appellant,
v
No. 275327
Wayne Circuit Court
LC No. 02-004012-01
JAMES DRAIN,
Defendant-Appellee.
Before: Gleicher, P.J., and O’Connell and Kelly, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree murder, MCL 750.316,
felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b, all of which were affirmed. People v
Drain, unpublished opinion per curiam of the Court of Appeals, issued June 29, 2004 (Docket
No. 246014), lv den 472 Mich 867 (2005). In 2006, defendant filed a motion for relief from
judgment, which the trial court granted. The prosecution now appeals by leave granted. We
reverse.
A defendant may seek post-appeal judgment relief under MCR 6.500 et seq., but relief is
unavailable to a defendant who “alleges grounds for relief . . . which could have been raised on
appeal from the conviction and sentence or in a prior motion under this subchapter . . . .” MCR
6.508(D)(3). A defendant may avoid application of this bar, however, if he can demonstrate
good cause and actual prejudice.1 MCR 6.508(D)(3)(a) and (b); People v McSwain, 259 Mich
App 654, 681; 676 NW2d 236 (2003). Although, a trial court may waive the good cause
requirement “if it concludes that there is a significant possibility that the defendant is innocent of
the crime,” id., it does not appear that the trial court did so in this case, as it made no specific
finding regarding defendant’s actual innocence. Alternatively, a showing of ineffective
assistance may establish good cause. People v Reed, 449 Mich 375, 378-379; 535 NW2d 496
(1995). To demonstrate prejudice under MCR 6.508(D)(3)(b), a defendant must show that “‘but
1
We note that although the trial court cited the plain error standard of review, it is clear from its
opinion that it appropriately reviewed defendant’s motion for good cause and actual prejudice
under MCR 6.508(D).
-1-
for the alleged error,’ [he] ‘would have had a reasonably likely chance of acquittal,’” or that
“‘the irregularity was so offensive to the maintenance of a sound judicial process that the
conviction should not be allowed to stand regardless of its effect on the outcome of the case . . .
.’” McSwain, supra at 688, quoting MCR 6.508(D)(3)(b)(i) and (iii). Thus, the issue before us is
whether defendant’s claim of ineffective assistance of counsel established good cause and actual
prejudice to preclude the application of MCR 6.508(D)(3) to bar his claims.
The trial court found that defendant was denied effective assistance of counsel because
his trial counsel failed to object to a Batson2 violation and to various instances of prosecutorial
misconduct, and that defendant suffered actual prejudice from these violations. We review a trial
court’s grant of relief from judgment under MCR 6.508 for an abuse of discretion, but review its
factual findings for clear error. McSwain, supra at 681. “An abuse of discretion occurs when the
trial court chooses an outcome falling outside the permissible principled range of outcomes.”
People v Babcock, 469 Mich 247, 274; 666 NW2d 231 (2003).
The prosecution first argues that the trial court erred in finding defense counsel
ineffective for failing to object to a Batson violation. Because we find that there was no Batson
violation, we agree.3
To prevail on a claim of ineffective assistance of counsel, a defendant must show
that his counsel’s performance was objectively unreasonable and the
representation was so prejudicial that he was deprived of a fair trial. To
demonstrate prejudice, the defendant must show that, but for counsel’s error, there
was a reasonable probability that the result of the proceedings would have been
different. This Court presumes that counsel’s conduct fell within a wide range of
reasonable professional assistance, and the defendant bears a heavy burden to
overcome this presumption. [People v Watkins, 247 Mich App 14, 30; 634 NW2d
370 (2001) (citations omitted), aff’d in part, mod in part on other grounds 468
Mich 233 (2003).]
Under Batson, a prosecutor is prohibited from using peremptory challenges to strike a
juror from a defendant’s jury on the basis of race. People v Bell, 473 Mich 275, 278; 702 NW2d
128, amended 474 Mich 1201 (2005). Whether a prosecutor’s challenge was discriminatory
involves a three step process: (1) a defendant must initially establish a prima facie case of
purposeful discrimination based on race; (2) the prosecutor must then provide a race-neutral
explanation for the challenge at issue; and (3) the trial court must then decide whether a
defendant has proved purposeful discrimination. Id. at 278-279. “[A] trial court may sua sponte
raise a Batson issue.” Id. at 287.
2
Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986).
3
We find the law of the case doctrine inapplicable to this issue. Defendant framed this issue as
one of ineffective assistance of counsel, and this Court did not rule on the merits of the Batson
issue in the initial appeal. See Grievance Administrator v Lopatin, 462 Mich 235, 260; 612
NW2d 120 (2000).
-2-
In discussing the prosecutor’s peremptory challenges of black jurors, the trial court noted
that the prosecutor dismissed one juror the prosecutor suspected was sleeping, a second juror on
the grounds that “she would weigh the evidence for ‘a shadow of – I mean a reasonable doubt’”
– even though that juror made no reference to applying any standard other than a reasonable
doubt, a third juror because the juror could not objectively evaluate the testimony of a drug
dealer or police officer, three jurors because they thought a drug user may be less credible
depending on how drugs affected the person’s judgment, and a seventh juror based on her age.
At defendant’s trial, the court raised the Batson issue sua sponte. Based on our review of
the record, however, we conclude that a prima facie showing of purposeful discrimination was
dubious at best. To establish a prima facie case, the following must be shown: “(1) [defendant]
is a member of a cognizable racial group; (2) the proponent has exercised a peremptory
challenge to exclude a member of a certain racial group from the jury pool; and (3) all the
relevant circumstances raise an inference that the proponent of the challenge excluded the
prospective juror on the basis of race.” People v Knight, 473 Mich 324, 336; 701 NW2d 715
(2005). “That the prosecutor did not try to remove all blacks from the jury is strong evidence
against a showing of discrimination.” People v Eccles, 260 Mich App 379, 388; 677 NW2d 76
(2004), quoting People v Williams, 174 Mich App 132, 137; 435 NW2d 469 (1989). The
prosecutor did not exclude only black jurors, but also excused two white jurors. Additionally,
the trial court noted after the Batson hearing that four black jurors remained on the panel, and it
appears these minority jurors later were part of defendant’s jury.
However, even assuming a prima facie showing, the court erred by combining the second
and third steps of the Batson inquiry into one. “‘At this [second] step of the inquiry, the issue is
the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in
the prosecutor’s explanation, the reason offered will be deemed race neutral.’” Purkett v Elem,
514 US 765, 768; 115 S Ct 1769; 131 L Ed 2d 834 (1995), quoting Hernandez v New York, 500
US 352, 360; 114 L Ed 2d 395; 111 S Ct 1859 (1991) (alteration in Purkett). Here, the court
required the prosecutor to offer both race-neutral and persuasive reasons in support of her
peremptory challenges of black jurors. When the prosecutor offered explanations that were raceneutral on their face, the court found these explanations unpersuasive because white jurors
remaining on the panel were similarly situated to the challenged black jurors. However, “[i]t is
not until the third step that the persuasiveness of the justification becomes relevant -- the step in
which the trial court determines whether the opponent of the strike has carried his burden of
proving purposeful discrimination.” Purkett, supra at 768 (Emphasis in original). In essence, by
requiring the prosecutor to offer persuasive reasons for her peremptory challenges, the trial court
shifted the burden of proof. “‘[T]he ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike.’” Bell, supra at 297-298, quoting
Purkett, supra at 768.
In any event, the trial court’s evaluation of the prosecutor’s race-neutral explanations
during the Batson arguments was unsupported by the record.4 Specifically, in ruling that a
Batson violation occurred, the court pointed out that the prosecutor did not excuse three white
4
The trial court failed to make any findings regarding this issue in its opinion and order.
-3-
jurors who claimed that a drug user would not be a credible witness even though the prosecutor
had excused a black juror for the same reason.5 In making this finding, the court identified by
name the three white jurors to whom it was referring. However, two of these jurors indicated
that they would not dismiss a witness’s testimony because the witness was a drug user, and the
third juror was not even asked a question regarding this issue. The court also noted at the Batson
hearing that the prosecutor had excused a black juror due to her youthful age, but pointed out that
the prosecutor failed to excuse Paul Reger, a white juror, who was “obviously the youngest juror
on here . . . .” Although the record indicates that Reger was a student at Central Michigan
University, his age is not revealed.
Even if the trial court was correct, “Batson is not violated whenever two veniremen of
different races provide the same responses and one is excused and the other is not. This is so
because counsel must be entitled to make credibility determinations in exercising peremptory
challenges.” Matthews v Evatt, 105 F3d 907, 918 (CA 4, 1997) (citations omitted). Moreover,
because the trial court did not permit the prosecutor to explain the basis for her peremptory
challenges of white jurors, it was impossible for the court to have adequately evaluated the
prosecutor’s proffered race-neutral explanations because the prosecutor may have excused both
white and black jurors for the same reasons.
Notwithstanding the court’s refusal to allow the prosecutor to explain her peremptory
challenges of white jurors, the record contains an explanation for the dismissal of one white juror
(later dismissed by a peremptory challenge) because the prosecutor made a record in her initial
attempt to dismiss this juror for cause. Specifically, the prosecutor challenged this juror’s ability
to evaluate a drug user’s testimony. This reason was identical to several of the reasons the
prosecutor proffered in explaining her peremptory challenges of black jurors.
We note that one of the prosecutor’s explanations for a peremptory challenge was
unsupported by the record. Specifically, the record did not support the prosecutor’s challenge of
Johnie Trotter on the ground that she would “weigh the evidence for ‘a shadow of – I mean a
reasonable doubt.’” Implausible justifications for the exercise of a peremptory challenge may
support a finding of pretext for discrimination. Purkett, supra at 768. We conclude, however,
the lack of record support did not give rise to a pretext for discrimination in this case. Indeed,
the record did not contradict any of the prosecutor’s other reasons for challenging black jurors –
several of which were identical to the prosecutor’s reason to remove a white juror for cause (i.e.,
that the juror could not fairly evaluate a drug user’s testimony). Also, the prosecutor indicated
that she waited to challenge Trotter because she “wanted to see what the rest of the composition
of the jury was like before I made the decision to dismiss [Trotter].” As previously noted, the
fact that four black jurors remained on the panel in this case “is strong evidence against a
showing of discrimination.” Eccles, supra. In addition, it is worth noting that at the Batson
hearing, the trial court only assessed discriminatory intent as it related to the challenged black
jurors collectively. Had the court assessed such intent on a case-by-case basis, it may have found
the prosecutor’s reasons for exercising her peremptory challenges credible. This, in turn, would
5
It is worth noting that the trial court initially identified four white jurors in this context, but
later opined that one of these jurors “from her appearance . . . is Hispanic.”
-4-
have undercut any inference that the single challenge at issue (i.e., the challenge of Trotter) was
racially motivated. Thus, it appears the prosecutor, in attempting to recall the reasons for seven
peremptory challenges, provided a mistaken reason out of oversight rather than out of
discrimination. Consequently, there was no Batson violation in this case.
There being no Batson violation, we conclude that the trial court erred in finding that
defendant’s counsel was ineffective. “Defense counsel is not required to make a meritless
motion or a futile objection.” People v Goodin, 257 Mich App 425, 433; 668 NW2d 392 (2003).
For the same reason, defendant has also failed to show ineffective assistance of appellate
counsel. “The test for ineffective assistance of appellate counsel is the same as that for trial
counsel,” People v Pratt, 254 Mich App 425, 430; 656 NW2d 866 (2002), and appellate counsel
“[does] not render ineffective assistance by failing to present meritless claims.” Reed, supra at
402.
The prosecution next contends that the trial court erred in finding that during voir dire the
prosecutor improperly referenced a prior judicial proceeding involving defendant. We agree.
Prosecutorial misconduct occurs if a defendant is denied a fair trial. People v Watson, 245 Mich
App 572, 586; 629 NW2d 411 (2001). In evaluating issues of prosecutorial misconduct, we
examine the prosecutor’s remarks in context, on a case-by-case basis. Id. Unpreserved claims
are reviewed for plain error. Id. Because “[t]he function of voir dire is to elicit sufficient
information from prospective jurors to enable the trial court and counsel to determine who
should be disqualified from service on the basis of an inability to render decisions impartially,”
People v Sawyer, 215 Mich App 183, 186; 545 NW2d 6 (1996), it is proper for a prosecutor to
ask questions relevant to a prospective juror’s impartiality. See People v Dunham, 220 Mich
App 268, 270; 559 NW2d 360 (1996).
During voir dire, Chris Koka, one of the prospective jurors, indicated that he would not
want someone like himself on a jury if he, himself, were charged with murder “[bec]ause of what
[he saw during] 22 years of being a parole officer.” Although Koka claimed he would have no
problem presuming defendant innocent, he noted that in his job, “they’re all innocent when they
come to see me,” and added he could not be fair in this case. After these statements, the
following exchange ensued:
The prosecutor:
You realize that not everyone that’s arrested is convicted,
right?
Koka:
Correct.
The prosecutor:
And not everyone that’s arrested is necessarily guilty,
right?
Koka:
Correct.
The prosecutor:
Before they get to the point where they come to see you,
there is a process they have to go through that involves a
prosecutor like me somewhere, right?
Koka:
Correct.
-5-
The prosecutor.
What we’re trying to figure out is - - and I think you have
been real honest. I don’t want to kind of belabor it, but can
you participate in this part of the - - let me see I an phase - [sic].
Koka:
That in my mind would probably say if he went this far
with the police reports and everything else, I tend to be
guilty [sic].
***
The court:
I’m sorry to interrupt but let me ask this question. You
understand to get this far all you have to show is that there
is a probability? I mean you don’t have to show even a
preponderance to get this far. You understand that?
Koka:
Uh-huh.
Reviewed in context, we conclude the prosecutor’s questions to Koka were not improper.
Although Koka initially indicated he would presume defendant innocent, he insinuated that due
to his experience as a parole officer, he could not be fair because all parolees assert their
innocence. In asking Koka if he was aware that parolees participate in a judicial process
involving a prosecutor before meeting with a parole officer, the prosecutor was merely trying to
determine if Koka was aware that defendant’s status was markedly different from that of a
parolee. This bore directly on Koka’s impartiality. Further, it was the trial court’s question to
Koka that indicated defendant had participated in a judicial process preceding trial. But, given
Koka’s assertions, the purpose of the court’s question was identical to the prosecutor’s, i.e., to
determine Koka’s impartiality. In any event, any possible prejudice was cured by the trial
court’s instruction that defendant did not have to prove his innocence. Jurors are presumed to
follow their instructions, and instructions are presumed to cure most errors. People v Bauder,
269 Mich App 174, 190; 712 NW2d 506 (2005).
Because the prosecution’s questioning during voir dire was proper, the trial court erred in
concluding it constituted prosecutorial misconduct. Additionally, any objection to this
questioning would have been futile, so that defense counsel’s failure to object and appellate
counsel’s failure to raise the claim did not constitute ineffective assistance of counsel. Goodin,
supra; Reed, supra at 402. Therefore, the trial court also erred in finding ineffective assistance
of counsel.
The prosecution also argues that the trial court erred in concluding the prosecutor
improperly elicited and made arguments regarding a witness’s prior consistent statements.
Although we find the prosecutor acted improperly, we conclude the error was harmless.
All relevant evidence is admissible unless the rules of evidence, or the United States or
Michigan Constitutions, provide otherwise. MRE 402. Under MRE 802, hearsay is inadmissible
absent an exception. People v Dhue, 444 Mich 151, 159; 506 NW2d 505 (1993). MRE
801(d)(1)(B) provides that a statement is not hearsay if “[t]he declarant testified at the trial or
hearing and is subject to cross-examination concerning the statement, and the statement is . . .
-6-
consistent with the declarant’s testimony and is offered to rebut an express or implied charge
against the declarant of recent fabrication or improper influence or motive.” The following must
be established to admit a prior consistent statement:
(1) the declarant must testify at trial and be subject to cross-examination; (2) there
must be an express or implied charge of recent fabrication or improper influence
or motive of the declarant’s testimony; (3) the proponent must offer a prior
consistent statement that is consistent with the declarant’s challenged in-court
testimony; and, (4) the prior consistent statement must be made prior to the time
that the supposed motive to falsify arose. [People v Jones, 240 Mich App 704,
707; 613 NW2d 411 (2000) (internal quotes and citation omitted).]
Here, the trial court correctly found that during her direct examination of Baker, the
prosecutor elicited evidence that Baker had provided a statement to police and testimony at an
investigative subpoena hearing that was identical to her trial testimony, with the exception of
Baker’s assertion at trial that she was going to buy heroin rather than marijuana at the drug
house. The prosecutor also elicited evidence that Baker provided testimony at the preliminary
examination that was identical to her trial testimony. The elicitation of this evidence was
improper. Indeed, defense counsel made no charge of recent fabrication, improper influence, or
motive, and did not challenge Baker’s statements at the investigative subpoena until crossexamination – a time after the prior consistent statements were offered.
The prosecution argues that because defense counsel attacked Baker’s testimony during
her opening statement, the elicitation of the prior consistent statements was proper. Specifically,
defense counsel asserted during opening statement that “the testimony of Andria Baker will be
incredible, unreliable, a flat-out misrepresentation and lies,” and noted that the physical evidence
would not support the prosecutor’s theory of the case. In context, it is clear that defense
counsel’s statements amounted to a general attack on Baker’s credibility. Indeed, defense
counsel did not challenge any specific statement or testimony that Baker would provide. Thus,
this argument fails.
Given the impropriety of these statements, it was also improper for the prosecutor to
reference these statements during closing argument.6 Watson, supra at 588; see also, e.g., People
v Dyer, 425 Mich 572, 576; 390 NW2d 645 (1986). However, the prior consistent statements
and arguments pertaining to them did not prejudice defendant. Although Baker was the only
eyewitness to the shooting, making her credibility a significant issue, defense counsel did little to
impeach her testimony. Thus, the prior consistent statements were of little or no consequence
with respect to Baker’s credibility. Given this analysis, the failure of trial counsel to object to
the admission of the prior consistent statements or to the prosecutor’s reference to them during
closing argument was not outcome determinative. As such, defendant was not denied the
effective assistance of counsel.
6
Specifically, the prosecutor stated that Baker had consistently provided an accurate version of
events with the exception of her lie that she was going to buy marijuana instead of heroin.
-7-
Because we find no Batson violation and no prejudicial prosecutorial misconduct, there
can be no finding of ineffective assistance of counsel for failure to make futile objections.7
Without a valid ineffective assistance of counsel claim, defendant has failed to show good cause
under MCR 6.508(D)(3). Additionally, defendant has failed to show that, absent the singular
error of the prosecutor’s reference to Baker’s previous testimony, he had a reasonably likely
chance of acquittal or that it affected the integrity of the proceedings. McSwain, supra at 688.
Having failed to show good cause and actual prejudice, defendant was barred by MCR
6.508(D)(3) from raising his claims. Accordingly, the trial court’s grant of defendant’s motion
for relief fell outside the range of principled outcomes and constituted a clear abuse of discretion.
Babcock, supra.
Reversed.
/s/ Peter D. O’Connell
/s/ Kirsten Frank Kelly
7
For this reason, defendant’s claims of cumulative error must also fail, as there are no errors to
aggregate. People v Ackerman, 257 Mich App 434, 454; 669 NW2d 818 (2003).
-8-
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