PEOPLE OF MI V MARCUS ANTHONY WINDLESS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 26, 2009
Plaintiff-Appellee,
v
No. 281995
Wayne Circuit Court
LC No. 07-005895-FC
MARCUS ANTHONY WINDLESS,
Defendant-Appellant.
Before: Saad, C.J., and Bandstra and Hoekstra, JJ.
PER CURIAM.
Defendant appeals his jury trial convictions of armed robbery, MCL 750.529, carjacking,
MCL 750.529a, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. The trial court sentenced defendant to 14 to 21 years in prison for the armed
robbery and carjacking convictions and two years in prison for the felony-firearm conviction.
For the reasons set forth below, we affirm.
I. Jury Instructions
Defendant argues that the trial court committed plain error and denied defendant his right
to present a defense by failing to give a cautionary instruction regarding the unreliability of
accomplice testimony. See CJI2d 5.6. An affirmative statement by defense counsel that there
are no objections to the jury instructions constitutes express approval of the instructions. People
v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). Defense counsel expressly approved
the jury instructions with the affirmative statement that she had no objection to them after they
were given. Therefore, defendant has waived this issue on appeal. People v Lueth, 253 Mich
App 670, 688; 660 NW2d 322 (2002).
Defendant also complains that he was denied the effective assistance of counsel when his
attorney failed to request the instruction on accomplice testimony. Defendant argues that an
instruction was crucial to his theory that Cortland Brown falsely accused defendant of
committing the crimes. Moreover, defendant argues that because Brown’s testimony was
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favorable to the prosecution, there is a reasonable probability that, if the court had given the
instruction, the outcome of the trial would have been different.1
“Effective assistance of counsel is presumed, and defendant bears a heavy burden to
prove otherwise.” People v Dixon, 263 Mich App 393, 396; 688 NW2d 308 (2004). The right to
effective assistance of counsel is substantive and focuses on the actual assistance received.
People v Pubrat, 451 Mich 589, 596; 548 NW2d 595 (1996). “To establish ineffective
assistance of counsel, a defendant must show that counsel’s performance was below an objective
standard of reasonableness under prevailing professional norms and there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been different.”
People v Scott, 275 Mich App 521, 526; 739 NW2d 702 (2007), quoting People v Effinger, 212
Mich App 67, 69; 536 NW2d 809 (1995). “Defendant must overcome the strong presumption
that counsel’s performance was sound trial strategy.” Dixon, supra at 396.
Defense counsel repeatedly emphasized Brown’s potential credibility problems to the
jury during cross-examination and closing argument. In her cross-examination of Brown,
defense counsel highlighted inconsistencies between Brown’s trial testimony and what he
initially told the police and questioned him about the plea bargain he received in exchange for his
testimony. Defense counsel stressed these issues in her closing argument and suggested that
Brown was untrustworthy. The trial court also instructed the jury that it could consider Brown’s
plea bargain and past criminal conviction when determining his credibility and assigning weight
to his testimony. Because the issues of Brown’s credibility were plainly presented to the jury,
there is no reasonable probability that the outcome of the proceedings would have been different
if the trial court gave an accomplice credibility instruction. People v Reed, 453 Mich 685, 692693; 556 NW2d 858 (1996). Therefore, defendant was not denied the effective assistance of
counsel. Scott, supra at 526.
II. Disclosure of Mask
Defendant asserts that he was denied his right to discovery when his attorney did not
receive Officer Rogers’s preliminary complaint record (PCR) until the day of trial and learned
that the prosecutor intended to introduce into evidence a mask found in the officer’s patrol car.
Defendant contends that if the mask had been tested and the results did not link the mask to him,
it could have been used as impeachment evidence against Officer Rogers.2
1
Whether a defendant has been denied the effective assistance of counsel is a mixed question of
fact and law. “A judge first must find the facts, and then must decide whether those facts
constitute a violation of the defendant’s constitutional right to effective assistance of counsel.”
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). This Court reviews the factual
findings for clear error and the constitutional question de novo. Id. Because there was no
hearing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), this Court’s review
is limited to mistakes apparent on the record. People v Riley (After Remand), 468 Mich 135,
139; 659 NW2d 611 (2003).
2
A trial court’s decision to admit evidence is reviewed for abuse of discretion. People v Lukity,
460 Mich 484, 488; 596 NW2d 607 (1999). “An abuse of discretion occurs when the court
(continued…)
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A defendant has no constitutional right to discovery in criminal cases. People v Elston,
462 Mich 751, 758; 614 NW2d 595 (2000). All discoverable materials, except exculpatory
material, must be requested. MCR 6.201; People v Schumacher, 276 Mich App 165, 176; 740
NW2d 534 (2007). Under Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963),
“[a] criminal defendant has a due process right of access to certain information possessed by the
prosecution.” People v Lester, 232 Mich App 262, 281; 591 NW2d 267 (1998). “This due
process requirement of disclosure applies to evidence that might lead a jury to entertain a
reasonable doubt about a defendant’s guilt.” Id. at 281. “Impeachment evidence as well as
exculpatory evidence falls within the Brady rule because, if disclosed and used effectively, such
evidence ‘may make the difference between conviction and acquittal.’” Id. (citation omitted).
“In order to establish a Brady violation, a defendant must prove: (1) that the state
possessed evidence favorable to the defendant; (2) that he did not possess the evidence nor could
he have obtained it himself with any reasonable diligence; (3) that the prosecution suppressed the
favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable
probability exists that the outcome of the proceedings would have been different.” Id. at 281282. “The failure to disclose impeachment evidence does not require automatic reversal even
where . . . the prosecution’s case depends largely on the credibility of a particular witness.” Id.
at 282. Rather, “[t]he court must still find the evidence material,” meaning there is reasonable
probability that if the evidence was disclosed it might have affected the outcome. Id.
“In general, impeachment evidence has been found to be material where the witness at
issue supplied the only evidence linking the defendant to the crime or where the likely effect on
the witness’ credibility would have undermined a critical element of the prosecution’s case.” Id.
at 282-283. “In contrast, a new trial is generally not required where the testimony of the witness
is corroborated by other testimony or where the suppressed impeachment evidence merely
furnishes an additional basis on which to impeach a witness whose credibility has already been
shown to be questionable.” Id. at 283.
Here, even assuming that after lab testing the evidence would have been favorable to
defendant, defendant could have obtained the mask well before trial with reasonable diligence.
Officer Rogers was on the witness list for months before trial, yet defense counsel did not seek to
obtain his PCR. The PCR referred to the mask, and defendant could have obtained it for testing.
Further, while defense counsel only learned about the mask on the day of trial, nothing in the
record suggests that the prosecution actively suppressed this evidence. Moreover, the evidence
was not material because it would not have affected the outcome. While a test of the mask that
favored defendant would have assisted defendant in attempting to impeach the testimony of
Officer Rogers, the officer’s testimony was not the primary link between defendant and the
crimes. Rather, Brown testified extensively about defendant’s involvement and defendant’s own
statements to police implicated him in the crimes.
(…continued)
chooses an outcome that falls outside the range of reasonable and principled outcomes.” People
v Unger (On Remand), 278 Mich App 210, 217; 749 NW2d 272 (2008). Constitutional claims of
due process violations are reviewed de novo. People v Pitts, 222 Mich App 260, 263; 564
NW2d 93 (1997).
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Defendant also claims that he did not receive the effective assistance of counsel because
his trial counsel’s lack of knowledge about the mask rendered her unprepared for trial. When
claiming ineffective assistance of counsel based on an alleged lack of preparation, a defendant
must show prejudice resulting from the alleged lack of preparation. People v Caballero, 184
Mich App 636, 640; 459 NW2d 80 (1990). Defendant cannot show prejudice here because the
mask was merely one item of evidence that may have linked defendant to the crimes. Again,
Brown’s direct testimony detailed defendant’s involvement and defendant’s own statements to
police indicated that he was involved in stealing the cars.
For the same reasons, we reject defendant’s further argument that the prosecution’s
failure to disclose the existence of the mask constituted prosecutorial misconduct and a denial of
due process.3 As discussed, any alleged failure of the prosecution did not actually prejudice
defendant. Moreover, defense counsel was able to fully cross-examine Officer Rogers about the
circumstances under which he discovered the mask. Therefore, any alleged misconduct did not
result in plain error.
Affirmed.
/s/ Henry William Saad
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
3
This Court reviews a claim of prosecutorial misconduct de novo. People v Pfaffle, 246 Mich
App 282, 288; 632 NW2d 162 (2001). However, because the issue is unpreserved, this Court
reviews for plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999). “The test for prosecutorial misconduct is, viewing the alleged
misconduct in context, whether the defendant was denied a fair and impartial trial.” People v
Goodin, 257 Mich App 425, 432; 668 NW2d 392 (2003). Allegations of prosecutorial
misconduct are examined on a case-by-case basis, viewing the prosecution’s statements in light
of the defendant’s arguments. People v Thomas, 260 Mich App 450, 454; 678 NW2d 631
(2004). Generally, prosecutors have great latitude in their arguments and conduct during trial.
Unger, supra at 236. “To avoid forfeiture under the plain error rule, a defendant must show
actual prejudice.” People v Pipes, 475 Mich 267, 274; 715 NW2d 290 (2006).
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