PEOPLE OF MI V ERIC JEROME LUSTER
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 29, 2009
Plaintiff-Appellee,
v
No. 287142
Kent Circuit Court
LC No. 07-002211-FH
ERIC JEROME LUSTER,
Defendant-Appellant.
Before: Markey, P.J., and Bandstra and Murray, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for possession with the intent to
deliver marijuana, MCL 333.7401(2)(d)(iii), and possession of marijuana, MCL 333.7402(2)(d).
Defendant was sentenced as an habitual offender, fourth offense, MCL 769.12, to 3 to 15 years’
imprisonment for possession with the intent to deliver marijuana and was ordered to pay a $500
fine for possession of marijuana, his sentence for the instant offenses to run consecutively to the
sentences for which defendant was on parole at the time these offenses were committed. We
affirm.
Defendant argues on appeal that the prosecutor committed misconduct when he
threatened defendant and Nicole DeVones with perjury charges if they testified at trial in a
manner contrary to their previous statements to police. Defendant asserts that this misconduct
denied him the right to present a defense, to due process, and to a fair trial. Defendant also
argues that the prosecutor’s comment during his opening statement that “[t]he evidence we have
in this case is overwhelming, and you will see that and I will discuss it in a moment,” was an
improper argument that vouched for the credibility of the prosecutor’s witnesses and thus was
error requiring reversal. We disagree.
When defense counsel fails to object to the prosecutor’s conduct, as was the case here,
we review defendant’s claim for plain error that affected his substantial rights.1 People v Callon,
256 Mich App 312, 329; 662 NW2d 501 (2003). A defendant has a constitutional right to call
witnesses in his defense. US Const, Ams VI, XIV; Const 1963, art 1, §§ 13, 20. In addition,
1
We note that defense counsel indicated that the witnesses were informed of potential perjury
charges and that he therefore felt he could not call defendant or DeVones as witnesses. He did
not, however, argue prosecutorial misconduct or claim improper threats were made.
-1-
there is no question that intimidation and threats by a prosecutor to a witness constitutes grounds
for reversal because such actions usually deprive a defendant of his right to a fair trial. People v
Pena, 383 Mich 402, 406; 175 NW2d 767 (1970). “However, a prosecutor may inform a witness
that false testimony could result in a perjury charge.” People v Layher, 238 Mich App 573, 587;
607 NW2d 91 (1999). In this case, there is no evidence on the record that the prosecutor told
defendant or DeVones in a strong, threatening manner that if they testified falsely they would be
subject to perjury charges. And, “warnings to potential defense witnesses concerning selfincrimination or possible perjury charges have been held to be proper,” when strong and
threatening language was not used. People v Robbins, 131 Mich App 429, 440; 346 NW2d 333
(1984). In addition, the record suggests that the decisions by DeVones and defendant not to
testify at trial were based on an accurate appraisal of their legal situation following consultation
with counsel. Id. Based on the foregoing, we find that there was no plain error affecting
defendant’s substantial rights. Id.; Callon, 256 Mich App at 329.
With regard to the challenged comment during the prosecutor’s opening statement, the
comment had the proper purpose of informing the jury what the prosecutor intended to show and
was a fair introduction to the evidence to be presented at trial. People v Moss, 70 Mich App 18,
32; 245 NW2d 389 (1976). The comment also encompassed the argument that the evidence
established defendant’s guilt, which also was not improper. People v Swartz, 171 Mich App
364, 370; 429 NW2d 905 (1988). The prosecutor did not imply that he possessed special
knowledge of the guilt of defendant or special knowledge of the veracity of the prosecution’s
witnesses. People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995). Moreover, the
prosecutor did not impermissibly urge the jurors to suspend their judgment out of deference to
his own, People v Whitfield, 214 Mich App 348, 352-353; 543 NW2d 347 (1995), nor suggest
that the jury decide the case on the authority of his office, Swartz, 171 Mich App at 370-371.
Based on the foregoing, we find that the challenged comment was not improper. Thus, there was
no plain error. Callon, 256 Mich App at 329. Further, any arguable prejudice flowing from the
prosecutor’s remark was mitigated by the jury instructions. Bahoda, 448 Mich at 281. “Curative
instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial
statements and jurors are presumed to follow their instructions.” People v Unger, 278 Mich App
210, 235; 749 NW2d 272 (2008).
Defendant next argues, relying on People v Dunbar, 264 Mich App 240; 690 NW2d 476
(2004), that the trial court erred by requiring him to pay costs and fees, which included a fine,
without first determining his ability pay. Because defendant failed to challenge the imposition of
costs and fees below, we review this unpreserved issue for plain error affecting defendant’s
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In this case,
unlike in Dunbar, the trial court did not order defendant to repay the costs of a court-appointed
attorney. Rather, the trial court assessed a $500 fine, a $60 crime victim fee, and a $120 state
minimum fee. The Court in Dunbar, 264 Mich App at 255, specifically stated that a defendant’s
ability to pay need not be considered when ordering fines and costs. Consequently, the trial
court did not err in requiring defendant to pay a fine and costs without first assessing his ability
to pay. Id.
Defendant also asserts that he should be granted credit toward his minimum sentence in
this case for the time he was incarcerated between his arrest and sentencing, even though he was
on parole, because no additional time was added to his prior sentence. Defendant’s argument has
no merit. MCL 768.7a(2) plainly provides that any sentence for a new offense must run
consecutive to the uncompleted portion of any prior sentence for the offense for which defendant
-2-
was on parole. MCL 769.11b provides that jail credit shall be given when defendant spends time
in jail before sentencing if, and only if, defendant was incarcerated because he was denied, or
was unable to furnish, bond. In People v Idziak, 484 Mich 549, 552; 773 NW2d 616 (2009), the
Court held that, under MCL 791.238(2), when a parolee is arrested for a new offense, he resumes
serving the sentence for his previous offense, and “[a]s long as time remains on the parolee’s
earlier sentence, he remains incarcerated, regardless of his eligibility for bond or his ability to
furnish it.” Thus, because the parolee is not in jail based on denial of bond or the lack of ability
to furnish it, MCL 769.11b does not apply. Id.
Finally, defendant argues that he was in jail for 19 months awaiting trial, in violation of
his right to a speedy trial and of the 180-day rule set forth in MCL 780.131. Consequently,
defendant asserts, his trial counsel was ineffective for failing to move for a speedy trial. We
review de novo the underlying issue of constitutional law regarding whether defendant was
denied his right to a speedy trial. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006).
We also review de novo issues of statutory interpretation. Id. To establish ineffective assistance
of counsel during trial, defendant must show that his trial counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms; that but for his
counsel’s errors, there is a reasonable probability that the results of his trial would have been
different; and that the proceedings were fundamentally unfair or unreliable. People v Toma, 462
Mich 281, 302-303; 613 NW2d 694 (2000); People v Rodgers, 248 Mich App 702, 714; 645
NW2d 294 (2001).
As a preliminary matter, MCL 780.131 sets forth the 180-day rule for inmates of the state
prison system. It provides in part:
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
the warrant, indictment, information, or complaint.
The purpose of the statute is to dispose of untried charges against prison inmates so that
sentences can run concurrently. People v Woodruff, 414 Mich 130, 136; 323 NW2d 923 (1982),
overruled on other grounds People v Smith, 438 Mich 715; 475 NW2d 333 (1991), overruled in
part on other grounds Williams, 475 Mich at 245; People v Walker, 276 Mich App 528, 535-536;
741 NW2d 843 (2007), vacated in part on other grounds 480 Mich 1059 (2008).
Defendant argues that his trial was required to begin within 180 days of his lodging in the
local jail pursuant to MCL 780.131. However, MCL 780.131 only applies to inmates in a state
correctional facility; it does not apply to charges against inmates incarcerated in county jail while
awaiting trial. People v McLaughlin, 258 Mich App 635, 643; 672 NW2d 860 (2003).
Therefore, the 180-day rule did not apply, and was not violated, in this case. People v Metzler,
193 Mich App 541, 544-545; 484 NW2d 695 (1992).
-3-
Beyond the 180-day rule for inmates in state correctional facilities, all criminal
defendants are guaranteed the right to a speedy trial by the federal and Michigan constitutions as
well as by statute and court rule. US Const, Am VI; Const 1963, art 1, § 20, MCL 768.1; MCR
6.004(A); Williams, 475 Mich at 261. “The time for judging whether the right to a speedy trial
has been violated runs from the date of the defendant’s arrest. In contrast to the 180-day rule, a
defendant’s right to a speedy trial is not violated after a fixed number of days.” Id. Rather, it
requires that trial commence within a reasonable time under the circumstances. People v
Spalding, 17 Mich App 73, 75; 169 NW2d 163 (1969). When determining whether a defendant
has been denied a speedy trial, a court must weigh the conduct of the parties. Williams, 475
Mich at 261-262. Relevant factors include: (1) the length of the delay; (2) the reasons for the
delay; (3) whether the defendant asserted his right to a speedy trial; and (4) the prejudice to the
defendant from the delay. Id. A delay of six months between the date of arrest and the
commencement of trial is necessary to trigger an investigation into a claim that a defendant has
been denied a speedy trial. Walker, 276 Mich App at 541; People v Daniel, 207 Mich App 47,
51; 523 NW2d 830 (1994). When the delay is less than 18 months, the defendant is required to
prove prejudice. People v Collins, 388 Mich 680, 695; 202 NW2d 769 (1972); Walker, 276
Mich App at 541. A delay of more than 18 months is presumptively prejudicial to the defendant,
and shifts the burden of proving lack of prejudice to the prosecutor. Williams, 475 Mich at 262.
Defendant was arrested on December 30, 2006; his trial commenced on June 9, 2008, less
than 18 months later. The record relating to the reasons for the delay is sparse, because no
evidentiary hearing was held. However, the record does reflect one instance in which trial was
adjourned due to the unavailability of the prosecutor’s witnesses. Delays due to witness
unavailability do not weigh against either party. People v Cain, 238 Mich App 95, 113; 605
NW2d 28 (1999). The record also reflects that trial was adjourned on three additional occasions
due to the fact that the trial court was conducting a trial in another case. Because this was a
scheduling delay or delay caused by the court system, it is attributed to the prosecutor, but is
given a neutral tint and only minimal weight. Williams, 475 Mich at 263. In addition, the record
reflects that there was an order for the substitution of defense counsel. Typically, a delay based
on a defendant’s request for substitution of counsel is attributable to a defendant. People v
Taylor, 110 Mich App 823, 828-829; 314 NW2d 498 (1981). Based on the foregoing and when
considered together, we find that there is no evidence that the prosecution was substantially to
blame for the delays in this case or that the delays were unwarranted. Cain, 238 Mich App at
113. More importantly, because the delay was less than 18 months, defendant was required to
show prejudice to his defense arising from the delay. Collins, 388 Mich at 695; Walker, 276
Mich App at 541. Defendant has not pointed to any instance of prejudice on the record and we
find none. Williams, 475 Mich at 262; Taylor, 110 Mich App at 829. Therefore, we conclude
that defendant was not denied his right to a speedy trial. Consequently, defense counsel was not
ineffective for failing to file a speedy trial motion. People v Milstead, 250 Mich App 391, 401;
648 NW2d 648 (2002); People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).
We affirm.
/s/ Jane E. Markey
/s/ Richard A. Bandstra
/s/ Christopher M. Murray
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
