PEOPLE OF MI V LORENZO LAWRENCE BOHANEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 18, 2011
Plaintiff-Appellee,
v
No. 295623
Wayne Circuit Court
LC No. 2009-010826-FC
LORENZO LAWRENCE BOHANEN,
Defendant-Appellant.
Before: FORT HOOD, P.J., and MURRAY and SERVITTO, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of felony murder, MCL 750.316,
possession of a firearm by a felon, MCL 750.316, and felony firearm, MCL 750.227b.
Defendant was sentenced as a habitual third offender, MCL 769.11, to concurrent terms of life
imprisonment on the murder conviction, and 3-10 years’ imprisonment on the felon in possession
conviction, to be served consecutive to 2 years’ imprisonment on the felony firearm conviction.
Because defendant is not entitled to a new trial, we affirm.
On February 19, 2009, defendant and a friend, known only as J-Moe, went to spend the
night at Sharell Porter’s home. Sharell, with whom J-Moe was acquainted, shared the home with
her sister Shamere. Upon their arrival, the victim was on the front porch of the home, apparently
intending to buy drugs from Sharell. Defendant, J-Moe, and the victim all entered the home
together and, at some point during the next few minutes, the victim was shot several times.
Defendant laid the gun used to shoot the victim against a wall in the home, removed money and
a cell phone from the victim’s pockets, and then he and J-Moe dragged the victim’s body
outside, leaving it in a field next to the home. J-Moe then collected the cell phones of the two
women present in the home at the time of the shooting, and he and defendant left the scene
together. The prosecution’s theory of the case was that defendant and J-Moe intended to rob the
victim and that while J-Moe may or may not have been the one who pulled the trigger on the
gun, defendant aided and abetted J-Moe in the entire matter. Defendant was charged with felony
murder, first degree premeditated murder, felon in possession of a firearm, and felony firearm,
but was found not guilty of the first degree premeditated murder charge. He was found guilty of
all other charges and now appeals those convictions.
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On appeal, defendant claims that the prosecutor engaged in misconduct when, during her
closing argument, she misstated facts in evidence. Defendant asserts that this misconduct
deprived him of a fair trial. We disagree.
Defendant properly preserved his claim that he was denied a fair trial by objecting to the
challenged remarks. We review preserved instances of alleged prosecutorial misconduct de
novo. People v Pfaffle, 246 Mich App 282, 288; 632 NW2d 132 (2001). We review such claims
on a cases-by-case basis, considering the alleged misconduct in light of all of the facts and
evidence presented at trial, in context of all of the remarks the prosecutor made, and in light of
defendant’s arguments, to determine whether the defendant was denied a fair and impartial trial.
People v Rice (On Remand), 235 Mich App 429, 435; 597 NW2d 843 (1999); People v Brown,
279 Mich App 116, 135; 755 NW2d 664 (2008).
It is true that a prosecutor may not argue facts that are not in evidence or mischaracterize
the evidence. People v Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001). He or she may,
however, argue all reasonable inferences arising from the evidence as it relates to his or her
theory of the case. People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008).
Defendant cites several specific statements made by the prosecutor in closing argument
that were allegedly not supported by the evidence. First, the prosecutor stated that two witnesses
testified they heard defendant say “Why” after the shooting, including Shamere Porter.
Specifically, the prosecutor stated, “The Defense points out that both witnesses stated that they
heard the Defendant say, “Why”, after the shooting. . .” Defense counsel objected, stating that
the prosecution was misstating facts in evidence: “I never said, and there was no testimony or
evidence that there were two witnesses who said after the shooting—or asked J-Moe, ‘Why did
you shoot him?’” In response to counsel’s objection, the trial court advised, “Well, the jury has
heard the evidence that it did, and with their collective memories they will recount what the
testimony was, who said what.”
At trial, Sharell Porter testified that immediately after she heard gunshots, she heard
defendant saying “Why—why—why—why.” Shamere Porter testified that she awoke to the
sound of gunshots in the home and thereafter saw defendant and J-Moe arguing. When
questioned as to whether she recalled anything specifically said by defendant or J-Moe, Shamere
testified that she heard defendant ask “Why did J-Moe do that?” Thus, there were, in fact, at
least two witnesses (including Shamere) who testified to hearing defendant say “Why” or some
version thereof immediately after the shooting, and the prosecutor’s remark averring the same
was consistent with the evidence at trial.
The next alleged misstatement of fact by the prosecutor concerns where the victim was
sitting when he was first shot, and the prosecutor’s statement that after the first shot, the victim
fell over and was shot again while on the floor. According to defendant, there was no testimony
that the victim was shot while lying on floor.
The following took place during the prosecutor’s closing argument:
Prosecutor: He said—he being the Defendant—in his testimony stated that [] the victim
was sitting in the corner where the wall of the dining room and the kitchen meet, right? See that
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on the sketch here. And he says he’s seated on the stool there, and after the first shot he fell
over, and then he shot him some more and—
Defense counsel: I’m going to object, Your Honor. [Defendant] made no demonstrative
evidence as to where [the victim] was seated as the Prosecutor is suggesting.
The Court: Again, the jury has heard the evidence. It’s up to them to determine what the
testimony was.
At trial, defendant testified that when the victim entered the home, he went into the
dining room and sat down. When asked where the victim was seated in relationship to
defendant, defendant responded, “By the kitchen and by the living room wall, like right in that
little corner.” Defendant further testified that J-Moe went into a back bedroom with Sharell and
began yelling at her. Next, J-Moe “came out and shot the guy.”
Defense Counsel:
Did you see him actually shoot [the victim]?
Defendant:
Not at first. When I heard the first shot, I looked up, and then I saw him
shoot him like three more times.
On cross-examination, defendant reiterated, “When I came in, we [he and the victim] sat
in the dining room.”
Prosecutor: So, did [the victim] also sit down on a stool?
Defendant: Yes.
***
Prosecutor: And where was [the victim] at that time?
Defendant: Sitting on the stool.
Prosecutor: He’s still sitting on the stool even after the first shot?
Defendant: Yeah. He was still sitting on the stool then.
Prosecutor: Then did you say three or four more times he shot?
Defendant: Like three more times, yes.
Defendant’s testimony supports the prosecutor’s argument as to where the victim was
sitting when he was first shot. To the extent that the prosecutor attributed a statement to
defendant that the victim was shot once while sitting, then shot repeatedly after he fell to the
floor, such a statement by defendant is not in evidence. An inference could be drawn from the
evidence that was presented, however, that the victim was, indeed, shot after he fell to the floor.
This inference was what the prosecution was attempting to indicate to the jury, as shown by her
closing remarks, made after defense counsel’s objection, above:
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He very clearly stated that, and this is important because the physical evidence
that, the physical evidence being the places where the bullet holes are in the wall,
in the house, and on the victim.
Yes. There are some markings or two indications of two shots there. But
if, in fact, this had happened the way the Defendant said, we would expect that all
of his shots would be there, right? But, instead, what this evidence shows is there
is also shooting over here into this wall. He lied about how this happened and
you have to take that into consideration when you go into other things he had to
say because if [the victim] was, in fact, on this stool and fell down and was shot
and didn’t go anywhere, there wouldn’t be shots flying out the front window, and
the bullet holes across the street in the house across the street. And it wouldn’t be
the case that the wounds to this young man are the way they are.
Consistent with the prosecutor’s remarks, a Detroit Police Department evidence
technician testified that when processing the home after the shooting, she saw suspected bullet
holes in two different walls in the living room. The medical examiner who conducted an autopsy
on the victim testified that the victim had four gunshot wounds, one of which entered through his
left buttock and exited through his right abdomen. While the prosecution inaccurately attributed
a statement that the victim was shot after he fell to the floor to defendant, an inference could be
made, based upon the testimony, that the victim could not have been sitting when all shots were
fired. Moreover, the trial court instructed the jury at the conclusion of the trial that they were to
decide what the facts of the case were, and that “. . . you may only consider the evidence that has
been properly admitted in this case.” The trial court further instructed that “The lawyers’
statements and arguments are not evidence.” A jury is presumed to follow its instructions.
People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). As a result, defendant was not
denied a fair and impartial trial, despite the prosecutor’s inaccurate remark.
Lastly, defendant contends that the prosecutor misstated the evidence when she told the
jury that defendant was shown to have testified untruthfully by virtue of the medical examiner’s
indication that the second shot into defendant was consistent with the victim being shot while
lying on ground. On this issue, the prosecutor specifically stated:
You heard the testimony of Doctor Sung, and this is important. This is not
somebody who was shot when they are down on the ground after they fell off the
stool after the first shot like this Defendant untruthfully testified [sic].
Doctor Sung testified about the fact that gunshot number 2 had [a] wound
track from back to front, and upward. You can see that when you look at the
entry and exit wounds in this sketch.
Defense counsel objected, asserting, “There was no evidence that [the victim] was shot while
lying on the ground. There was no testimony of that. That’s misstating facts in evidence.” The
trial court responded, “Nobody testified as to that. I heard argument talking about the track of
the wound. The jury will know what it heard and what it did not hear.”
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Contrary to defendant’s assertion, then, the prosecutor did not affirmatively state that the
medical examiner testified that the victim was shot while lying on the ground. Instead, the
prosecutor repeated what the medical examiner did testify to concerning the wound path being
from back to front and exiting though the abdomen, and argued the inference that because the
wound path went from the back of the victim’s body to the front, and upward, he could not have
been sitting on stool when he was shot the second time, as claimed by defendant. This was a fair
inference, given the evidence. The prosecutor did not misstate the facts in evidence and
defendant was not denied a fair and impartial trial on that basis.
Affirmed.
/s/ Karen Fort Hood
/s/ Christopher M. Murray
/s/ Deborah A. Servitto
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