                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 24, 2015
               Plaintiff-Appellee,

v                                                                   No. 318205
                                                                    Kalamazoo Circuit Court
RANDY POOKEY SMITH,                                                 LC No. 2012-001861-FC

               Defendant-Appellant.


Before: BECKERING, P.J., and BORRELLO and GLEICHER, JJ.

PER CURIAM.

         Defendant, Randy Pookey Smith, was convicted by a jury of felony murder, MCL
750.316(1)(b); armed robbery, MCL 750.529; and conspiracy to commit armed robbery, MCL
750.157a; MCL 750.529. The trial court sentenced defendant to life imprisonment without
eligibility for parole on his felony murder conviction, and life imprisonment on his armed
robbery and conspiracy convictions. He appeals as of right, and we affirm.

                                     I. PERTINENT FACTS

        Defendant’s convictions arise out of the October 3, 2010, shooting death of Joseph Salib.
Defendant lived on the same street as the victim. The prosecution presented evidence to
establish that approximately two weeks before the victim’s death, defendant asked two
acquaintances if they would assist him in robbing the victim, who was a known drug dealer; both
men refused. Defendant subsequently told one of the men, Ricky Dixon, that he had recruited an
individual named Doug Davis to assist him in the robbery. Dixon told defendant not to bring
Doug, because Doug would likely kill the victim. Despite this warning, Dixon saw defendant
with Doug on October 3, 2010, the night the victim was killed. Telephone records showed that
there were several telephone calls on the day of the murder, including a “flurry of phone calls” at
approximately the same time the shooting occurred, between Doug’s cellular telephone number
and a cellular telephone that defendant shared with another individual.

       It is undisputed that on the evening of October 3, 2010, defendant was at the victim’s
house in the time frame leading up to the assault, including hanging out by a bonfire in the
victim’s backyard. At some point that evening, defendant approached an individual who lived
down the street from where the shooting occurred and asked that person if he had a gun because
defendant’s friend was being robbed. The individual did not give defendant a gun, and


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defendant walked away. Shortly thereafter, the individual heard gunshots emanating from the
direction toward which defendant went.

        Jolanta Meriweather, the victim’s girlfriend, arrived at the victim’s house shortly after the
shooting. When she pulled into the victim’s driveway, defendant asked her to telephone 911, but
did not indicate why. Meriweather heard defendant say that the victim had been shot, then heard
defendant say three times to the victim, who was clinging to life, “I didn’t mean for it to go down
like that.” Upon Meriweather’s insistence, defendant attempted to drag the victim into her car in
an effort to bring him to the hospital.

        Responding to a 911 call, police officers arrived at the victim’s home and found
defendant and Meriweather attempting to put the victim in Meriweather’s vehicle. At the time,
the victim’s ankles were taped together with duct tape, and one of his wrists was wrapped in duct
tape as well. Officers were unable to revive the victim, and he died shortly thereafter.

        When interviewed by police officers, defendant stated that he had been at the victim’s
house for a backyard bonfire when a masked individual approached, pointed a handgun at his
head, and ordered him to go inside, where the victim was. Once inside, defendant became
nervous and ran out the door, eluding the gunman. Defendant maintained that he hid in the
bushes outside the house, and after hearing gunshots and seeing the masked man leave, went
inside to check on the victim. Defendant did not call the police because he did not have a
cellular telephone.

       Several witnesses testified about their contact with defendant after the victim’s killing.
One witness recalled that, on the morning after the killing, defendant informed her that the
victim had died, and that he said either “I didn’t mean for it to happen this way,” or “I never
meant it to happen this way.” The witness also reported that defendant told her that “they” made
him duct tape the victim’s hands together. Dixon also saw defendant after the shooting.
According to Dixon, defendant told him that he should have heeded Dixon’s warning that Doug
would kill the victim. Another witness testified that he heard defendant and Doug talking about
a robbery that “went bad.”

        Alan Davis testified that he spoke with defendant after the victim’s death and that
defendant asked him where he could sell several gold and diamond rings. Alan testified that
defendant told him he had set up a robbery with Doug; defendant stated that Doug was the wrong
person to use because he ended up killing the victim. Alan recalled that defendant told him that
he and Doug were supposed to get drugs and money from the robbery; however, defendant
indicated that he did not receive as much as he thought he should have from Doug. In addition,
defendant told Alan that it was not his plan for the victim to get shot; he believed that the victim
was not the type of person who would have fought back during the robbery.

                            II. SUFFICIENCY OF THE EVIDENCE

       Defendant first challenges the sufficiency of the evidence presented to support each of his
convictions. We review challenges to the sufficiency of the evidence de novo. People v
Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). In reviewing sufficiency of the
evidence, this Court views the evidence in a light most favorable to the prosecution to determine

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whether the evidence was sufficient to enable a rational jury to find that the essential elements of
the crime were proven beyond a reasonable doubt. People v Harverson, 291 Mich App 171,
175; 804 NW2d 757 (2010). All conflicts in the evidence must be resolved in favor of the
prosecution. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), amended 441
Mich 1201 (1992). Circumstantial evidence and all reasonable inferences drawn therefrom
constitute satisfactory proof of the crime. People v Carines, 460 Mich 750, 757; 597 NW2d 130
(1999).

                                     A. ARMED ROBBERY

       A defendant is guilty of armed robbery if, while in possession of a dangerous weapon,
MCL 750.529, and “in the course of committing a larceny of any money or other property that
may be the subject of larceny, [the defendant] uses force or violence against any person who is
present, or . . . assaults or puts the person in fear.” MCL 750.530(1). A defendant convicted of
armed robbery must have the specific intent to permanently deprive the owner of his property.
People v King, 210 Mich App 425, 428; 534 NW2d 534 (1995).

        The prosecution charged defendant under an aiding and abetting theory. The elements of
aiding and abetting are:

       (1) the crime charged was committed by the defendant or some other person, (2)
       the defendant performed acts or gave encouragement that assisted the commission
       of the crime, and (3) the defendant intended the commission of the crime or had
       knowledge that the principal intended its commission at the time he gave aid and
       encouragement. [People v Plunkett, 485 Mich 50, 61; 780 NW2d 280 (2010)
       (citation and quotation omitted).]

       There was sufficient evidence for a rational jury to find defendant guilty of armed
robbery on an aiding and abetting theory. The evidence showed that defendant recruited Doug to
help him rob the victim. A police officer testified that the victim’s ankles were duct-taped
together. Alan testified that, after the robbery, defendant asked where he could sell gold and
diamond rings. Alan also testified that defendant stated that he did not receive as much as he
should have after the robbery with Doug. Finally, the evidence showed that a gun was used in
the commission of the crime based on the bullet wounds found on the victim. Viewing this
evidence in a light most favorable to the prosecution, the evidence was sufficient to support
defendant’s conviction of armed robbery on an aiding and abetting theory.

                     B. CONSPIRACY TO COMMIT ARMED ROBBERY

        Conspiracy to commit armed robbery requires proof of “both the intent to combine with
others and the intent to accomplish the illegal objective”—in this case, armed robbery. People v
Mass, 464 Mich 615, 629; 628 NW2d 540 (2001). Direct proof of an agreement is not required;
rather, proof of a conspiracy may be derived from the “circumstances, acts, and conduct of the
parties.” People v Justice (After Remand), 454 Mich 334, 347; 562 NW2d 652 (1997).

       As noted above, the evidence showed that defendant recruited Doug to assist him in
committing an armed robbery after others turned down defendant’s request to participate in the
robbery. Further, after the offense, defendant told witnesses that he recruited Doug to commit an
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armed robbery, and that he regretted that choice because Doug killed the victim. Defendant and
Doug were seen together on the night of the offense. Moreover, a detective testified regarding
numerous telephone calls made around the time of the offense between Doug and a cellular
telephone that defendant was allowed to use. Viewing this evidence in a light most favorable to
the prosecution, the evidence was sufficient to support defendant’s conviction for conspiracy to
commit armed robbery.

                                      C. FELONY MURDER

        The prosecution charged defendant with felony murder under an aiding and abetting
theory, with the predicate felony being armed robbery. To establish guilt of felony murder on an
aiding and abetting theory, the prosecutor must establish that defendant:

       (1) performed acts or gave encouragement that assisted in the commission of the
       killing of a human being, (2) with the intent to kill, to do great bodily harm, or to
       create a very high risk of death or great bodily harm with knowledge that death or
       great bodily harm was the probable result, (3) while committing, attempting to
       commit, or assisting in the commission of the predicate felony. [People v Riley
       (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003), citing Carines, 460
       Mich at 755.]

Felony murder requires a showing of malice. Id. In order to satisfy the malice requirement of
felony murder, “the prosecution must show that the aider and abettor either intended to kill,
intended to cause great bodily harm, or wantonly and willfully disregarded the likelihood that the
natural tendency of his behavior was to cause death or great bodily harm.” Id. at 140-141. In
addition, “if an aider and abettor participates in a crime with knowledge of the principal’s intent
to kill or to cause great bodily harm, the aider and abettor is acting with wanton and willful
disregard sufficient to support a finding of malice.” Id. (quotation marks omitted).

        The parties stipulated to the fact that the victim was killed on the date of the offense after
suffering gunshot wounds to his chest and abdomen. The evidence and reasonable inferences
supported a finding that Doug killed the victim. Because “[a] jury may infer that the defendant
aided and abetted the killing by participating in the underlying offense,” People v Bulls, 262
Mich App 618, 625; 687 NW2d 159 (2004), the evidence was sufficient to show that defendant
aided and abetted the killing on the basis of his involvement in the armed robbery. Concerning
malice, the evidence showed that defendant was warned that Doug would likely kill the victim,
but he continued with his plan regardless. The evidence also showed that, before the victim was
shot, defendant asked a neighbor for a gun, but he was not given one. Two witnesses testified
that after the victim died, they heard defendant say that he “never meant for it to happen this
way.” Thus, the evidence supported a finding that, even though defendant did not intend the
victim’s death, he “ ‘intended to do an act [armed robbery] in obvious disregard of life-
endangering consequences,’ thus evidencing his malicious intent[.]” Id., quoting People v
Goecke, 457 Mich 442, 466; 579 NW2d 868 (1998) (internal citation omitted; alteration
omitted). Viewing the evidence in a light most favorable to the prosecution, there was sufficient
evidence for a rational jury to convict defendant of felony murder.



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        With regard to all of his convictions, defendant argues that the evidence of his guilt was
not credible because several witnesses testified pursuant to plea deals. However, this Court will
not interfere with the jury’s credibility determinations, Wolfe, 440 Mich at 514-515, and, when
reviewing claims of sufficiency of the evidence, we must “draw all reasonable inferences and
make credibility choices in support of the jury verdict.” People v Nowak, 462 Mich 392, 400;
614 NW2d 78 (2000).

                            III. PROSECUTORIAL MISCONDUCT

                Next, defendant argues that the prosecutor committed prosecutorial misconduct
by eliciting improper opinion testimony from three detectives and by making a civic duty
argument. He also argues that his trial counsel was ineffective for failing to object to these
alleged errors. We generally review issues of prosecutorial misconduct de novo. People v Akins,
259 Mich App 545, 562; 675 NW2d 863 (2003). We decide issues on a case-by-case basis by
reviewing the pertinent part of the record and evaluating the prosecutor’s conduct in context. Id.
However, because defendant failed to preserve this issue by objecting below, we review the
prosecutor’s conduct for plain error affecting defendant’s substantial rights. Carines, 460 Mich
at 763-764.

       Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002). Generally, a trial court’s findings of fact, if any, are reviewed for clear error, and
questions of law are reviewed de novo. Id. However, because this Court denied defendant’s
request for a Ginther1 hearing on this claim, our review is limited to mistakes apparent on the
lower court record. People v Fike, 228 Mich App 178, 181; 577 NW2d 903 (1998).

        For a claim of ineffective assistance of counsel, a defendant bears a heavy burden to
establish that (1) counsel’s performance fell below an objective standard of reasonableness, and
(2) but for counsel’s error, there is a reasonable probability that the outcome of the defendant’s
trial would have been different. People v Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010).
Counsel’s performance should be evaluated from his or her perspective at the time of the alleged
error, People v Grant, 470 Mich 477, 487; 684 NW2d 686 (2004), and a defendant must
overcome a strong presumption that counsel’s performance was sound trial strategy, People v
Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).

                                  A. OPINION TESTIMONY

        Defendant first contends that the testimony of three detectives was improper because the
detectives gave expert opinion testimony without being qualified as expert witnesses. See MRE
702. He contends that it was improper for the prosecutor to knowingly offer this testimony in
violation of MRE 702. After reviewing the challenged testimony, we do not agree with
defendant; none of the detectives provided expert testimony, and the prosecution did not proffer
their respective testimony as expert testimony. Instead, the detectives offered testimony as lay


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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witnesses on matters that were rationally based on their respective perceptions and observations;
they did not offer opinions that were dependent on scientific, technical, or other specialized
knowledge. See MRE 701; MRE 702; People v McLaughlin, 258 Mich App 635, 657-659; 672
NW2d 860 (2003).

        More significantly, however, defendant argues that the detectives’ testimony was
improper because each opined on defendant’s guilt in response to questions posed by the
prosecutor that were designed to elicit such opinions. “A witness may not opine about the
defendant’s guilt or innocence in a criminal case.” People v Heft, 299 Mich App 69, 81; 829
NW2d 266 (2012). However, police officers do not offer improper opinion testimony when
explaining, among other matters, the steps of the investigation and how the investigation came to
focus on the defendant, that certain statements by the defendant were unreasonable, given the
circumstances and the perceptions of the officers, or that the defendant’s statements led the
officers to believe that “something was afoot[.]” Id. at 82-83.

        Here, some of the challenged testimony was proper, as it concerned how the detectives
came to treat defendant as a suspect, rather than a mere witness, given defendant’s statements
during interviews. See id. However, some of the challenged testimony by the detectives came
dangerously close to crossing, and at times may have crossed, the line that separates improper
opinion testimony about guilt and proper testimony explaining the criminal investigation.
Assuming without deciding that the testimony and the prosecutor’s questions preceding the
testimony were improper, we find that defendant cannot establish plain error requiring reversal,
given the strength of the properly admitted evidence in this case. As noted, the prosecution
presented testimony from witnesses who stated that defendant discussed the robbery with them,
indicating that he planned to perpetrate the robbery with Doug, and then later expressed regret
over choosing Doug for the robbery because Doug had shot the victim. One witness warned
defendant that Doug would kill the victim, but defendant proceeded nonetheless. Further, a
witness testified that defendant later bemoaned the fact that he did not receive as much from the
robbery as he had originally hoped. In addition, a witness recalled seeing defendant and Doug
together before the robbery, and there was no dispute that defendant was at the victim’s home on
the evening of the robbery and shooting. And, we note that the prosecution did not emphasize
the challenged comments in arguing that the jury should find defendant guilty of the above
offenses.

        Finally, we note that the harm caused by such improper questions and testimony could
have been alleviated by a timely request for a curative instruction. See People v Unger, 278
Mich App 210, 234-235; 749 NW2d 272 (2008) (explaining that, where a claim of prosecutorial
error is not preserved by a contemporaneous objection, this Court will not reverse the
defendant’s convictions if the error could have been cured by a timely request for a curative
instruction). Furthermore, the trial court instructed the jury that it alone was to decide the facts
in the case and render a verdict. Thus, even assuming the existence of an error that was clear or
obvious, defendant is not entitled to relief because he cannot establish the prejudice prong of
plain error review, “i.e., that the error affected the outcome of the lower court proceedings.”
Carines, 460 Mich at 763. For that reason, we also find that, even assuming trial counsel’s
performance in failing to challenge the opinion testimony was objectively unreasonable,
defendant is not entitled to relief on his attendant claim of ineffective assistance of counsel


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because there is not a reasonable probability of a different outcome. See Swain, 288 Mich App
at 643.

        Defendant alternatively argues that the detectives’ testimony was improper because their
fact testimony was not separated from their opinion testimony, and a cautionary instruction was
not provided to alleviate confusion. Defendant relies on United States v Lopez-Medina, 461 F 3d
724, 743-745 (CA 6, 2006). Lopez-Medina, however, involved a police officer testifying in a
dual capacity as a fact witness and an expert witness. Id. Because the detectives did not testify
as expert witnesses, Lopez-Medina does not apply to this case, and a cautionary instruction was
not required.

                                 B. CIVIC DUTY ARGUMENT

        Defendant next argues that the prosecutor improperly made civic duty arguments in his
opening statement and closing argument. Although prosecutors are “accorded great latitude
regarding their arguments and conduct[,]” a prosecutor may not make a civic duty argument that
appeals to the fears and prejudices of the jury. People v Bahoda, 448 Mich 261, 282; 531 NW2d
659 (1995) (quotation and citation omitted). By doing so, the prosecutor improperly injects
issues broader than the guilt or innocence of the defendant. People v Abraham, 256 Mich App
265, 273; 662 NW2d 836 (2003).

       The challenged remarks are as follows:

       Opening Statement: At the end of the proofs I’m going to ask you, not just to find the
       defendant guilty, but tell him he’s guilty. Tell him Joe Salib died, because you set
       this whole thing up and you worked on it with other people to kill him during the
       armed robbery. You did do an armed robbery, and we’re not going to stand for it,
       and we certainly aren’t going to allow people to go out there and plan armed
       robberies to kill your friends, even if the guys [sic] a drug dealer. Even if he’s a drug
       dealer, he does not deserve to be tied up, pants down, gurgling and dying in front of
       his kids.

       Closing Argument: Ladies and Gentlemen, he’s guilty of [Count] I. He’s guilty of
       [Count] II. He’s guilty of Count III. People ask that you come back, walk
       through the door, look at him and say as citizens of this community you are guilty
       of killing and being a part of killing Joseph Salib, in the city, in 2010.

         Neither of the challenged remarks constituted an improper civic duty argument. Viewed
in context, each of the challenged remarks was merely a summation of the prosecutor’s
argument. After the prosecutor discussed the evidence to be produced or that was produced at
trial, the prosecutor asked the jury to find defendant guilty. Prosecutors are not required to argue
“in the blandest of all possible terms[,]” People v Ullah, 216 Mich App 669, 678; 550 NW2d 568
(1996), and may ask the jury to convict on the basis of the evidence presented at trial, see
Bahoda, 448 Mich at 284-285. Further, any minimal prejudice was cured by the trial court’s
instruction that the lawyers’ arguments were not evidence. People v Thomas, 260 Mich App
450, 456; 678 NW2d 631 (2004). Moreover, because these challenged remarks were proper,
defendant’s argument that counsel was ineffective for failing to object was also without merit.
See id. at 457 (stating that counsel cannot be ineffective for failing to make a futile objection).

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                                 IV. JURY INSTRUCTIONS

        Finally, defendant argues that his counsel was ineffective for failing to request a jury
instruction on the lesser-included offenses of second-degree murder and manslaughter. Whether
a defendant has been denied the effective assistance of counsel is a mixed question of fact and
constitutional law. LeBlanc, 465 Mich at 579. Because this Court denied defendant’s request for
a Ginther hearing on this claim, our review is limited to mistakes apparent on the record. Fike,
228 Mich App at 181.

        In this case, the jury asked during deliberations if it could consider lesser offenses,
although the jury did not specify on which charge. The decision to request an instruction on a
lesser-included offense is a matter of trial strategy. See People v Sardy, 216 Mich App 111, 116;
549 NW2d 23 (1996). In this case, the defense theory, evident from counsel’s opening statement
and closing argument, appeared to be that defendant was not involved at all in the victim’s
killing. In other words, defense counsel utilized an “all-or-nothing” approach. This theory was
consistent with defendant’s statements to police officers. Had counsel requested an instruction
on lesser-included offenses, counsel would have contradicted the only theory of defense.
Counsel is not rendered ineffective for using a trial strategy that is ultimately unsuccessful.
People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2001). Defendant cannot
overcome the presumption that counsel’s performance was sound trial strategy. Toma, 462 Mich
at 302.

       Affirmed.

                                                           /s/ Jane M. Beckering
                                                           /s/ Stephen L. Borrello
                                                           /s/ Elizabeth L. Gleicher




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