                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 28, 2015
               Plaintiff-Appellee,

v                                                                   No. 318725
                                                                    Wayne Circuit Court
KALLANTA MILLER,                                                    LC No. 13-005069-FH

               Defendant-Appellant.


Before: TALBOT, C.J., and MURPHY and GLEICHER, JJ.

PER CURIAM.

        A jury convicted defendant of felon in possession of a firearm, MCL 750.224f, two
counts of possession of less than 25 grams of a controlled substance, MCL 333.7403(2)(a)(v),
and possession of a firearm during the commission of a felony, MCL 750.227b(1), in relation to
his arrest while exiting a drug house. Defendant challenges the performance of defense counsel
and the prosecutor at trial, as well as the reasonableness of the search and seizure of his person.
Although defense counsel failed to reasonably investigate the prosecution’s case by reviewing an
available scout car video, doing so would not have altered the outcome. We affirm.

                                       I. BACKGROUND

        On the afternoon of May 17, 2013, two Detroit police officers on regular road patrol
noticed two men leave a vacant house. One of the officers was familiar with the house and knew
it was frequented for drug sales. The officers parked so they could question the men. Defendant
immediately turned his back to the squad car and began fumbling about his waist, as if trying to
hide a weapon or narcotics. The officers ordered defendant to turn around three to four times
before he complied. Defendant continued to “crunch[] over” and dug his hands inside his pants
pockets. When defendant finally raised his hands, a handgun fell to the ground from inside his
shorts. The officers placed defendant under arrest and searched his person. They found heroin
and crack cocaine in his pockets.

       Following defendant’s arrest, one of the officers prepared a written report. The vacant
home did not have an address affixed to the building’s exterior. Accordingly, the officer listed
the address of a neighboring house—19962 Keating. Later investigation by defense counsel
revealed that 19962 Keating was not a valid address. The block on which that address would be
located was filled with vacant lots and only two extant homes. Defense counsel used this
information to impeach the testimony of the testifying officer regarding his version of events.
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Defendant also attempted to convince the jury that his compatriot on the day in question had
possessed the handgun seized by the officers. At trial, the prosecutor presented footage from the
scout car’s dashboard video camera. This evidence established that defendant was arrested on a
residential block filled with houses. One of the officers testified that he visited the area during
trial and realized that he had transposed the numerals in the relevant address—19692 Keating.
The jury accepted the prosecutor’s evidence and convicted defendant.

                                  II. ASSISTANCE OF COUNSEL

        Defendant contends that his trial counsel was ineffective. Specifically, defendant
challenges defense counsel’s decision to hang his hat on the nonexistent address listed in the
police report without investigating the report’s accuracy. Defendant further asserts that trial
counsel was ineffective for failing to insist on fingerprint analysis of the handgun and drug
evidence. Arguably, counsel should have reviewed the footage earlier and adjusted his defense
strategy accordingly. Nevertheless we discern no error that affected the outcome of the trial.
Therefore, relief is unwarranted.

       Defendant failed to preserve his challenge by requesting a new trial or Ginther1 hearing.
Our review is therefore limited to mistakes apparent on the existing record. People v Payne,
285 Mich App 181, 188; 774 NW2d 714 (2009).

                 “‘[T]he right to counsel is the right to the effective assistance of counsel.’”
         United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984),
         quoting McMann v Richardson, 397 US 759, 771 n 14; 90 S Ct 1441; 25 L Ed 2d
         763 (1970). An ineffective assistance claim includes two components: “First, the
         defendant must show that counsel’s performance was deficient. . . . Second, the
         defendant must show that the deficient performance prejudiced the defense.”
         Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674
         (1984). To establish the deficiency component, a defendant must show that
         counsel’s performance fell below “an objective standard of reasonableness” under
         “prevailing professional norms.” People v Solmonson, 261 Mich App 657, 663;
         683 NW2d 761 (2004). With respect to the prejudice aspect, the defendant must
         demonstrate a reasonable probability that but for counsel’s errors, the result of the
         proceedings would have been different. Id. at 663-664. The defendant also must
         overcome the strong presumptions that “counsel’s conduct [fell] within the wide
         range of reasonable professional assistance” and that counsel’s actions were
         sound trial strategy. Strickland, 466 US at 689. [People v Galloway, 307 Mich
         App 151, 157-158; 858 NW2d 520 (2014), lv to appeal held in abeyance on other
         grounds ___ Mich ___ (Docket No. 150454, entered March 31, 2015).]

       Although defense attorneys are given wide discretion in relation to trial strategy, “a court
cannot [completely] insulate the review of counsel’s performance by calling it trial strategy.”
People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). Counsel must reasonably


1
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


                                                  -2-
investigate the case and craft a defense strategy after adequate review. Id. Counsel may forgo
avenues of investigation only after making a reasonable and considered decision to do so. Id.

        Here, defense counsel failed to review the video footage from the scout car. Counsel
presented testimony from the defense investigator that 19962 Keating did not exist and that the
block on which such an address would otherwise be located was occupied with vacant lots. The
prosecutor presented one of the arresting officers as a rebuttal witness and presented into
evidence the dash-cam footage. The officer testified that he had transposed the numerals in the
address and the video footage showed a residential street lined with houses. Defense counsel
objected to the presentation of the footage, arguing: “I was given a video but it was a defective
video and . . . I assumed she’s not going to put it in her proof then I am not going to worry about
it.” The prosecutor denied that the video was defective, explaining: “[I]t has to be viewed with
certain software not all computers can access it and I have made it and put it on record that it’s
available to [defense counsel] . . . .” The court subsequently adjourned for the day and the
prosecutor assisted defense counsel in reviewing the footage. The court then admitted the
footage into evidence.

       Defense counsel attempted to review the scout car footage in the prosecutor’s office, but
the prosecutor was unable to play the video due to technical difficulties. The prosecutor invited
defense counsel to return, and there is no record explanation of defense counsel’s failure to take
the prosecutor up on her offer.

       Regardless whether the failure to return rises to the level of ineffectiveness, defendant
cannot demonstrate a reasonable probability that the outcome of the trial would have differed had
defense counsel reviewed the footage before trial. Certainly defense counsel would have
pursued a different theory of the defense had he realized that the officer merely transposed the
address numerals in the police report. However, the prosecution presented overwhelming
evidence supporting defendant’s conviction. A handgun fell from defendant’s shorts while he
stood in front of two Detroit police officers on a clear, sunny day. The officers witnessed
defendant leave a vacant home known for drug activity and found illegal substances in
defendant’s pockets. In the face of such evidence, defense counsel’s poorly chosen strategy was
not outcome determinative.

        Defendant contends, however, that defense counsel’s deficient performance prevented
him from rebutting the overwhelming evidence of his guilt. At trial, defendant presented the
testimony of his uncle, Winton Miller. Miller testified that he was on Keating Street on May 17
visiting relatives and had telephoned defendant to meet him because he wanted to borrow a pair
of shoes. Miller denied that he or defendant had entered a vacant home. Rather, he claimed that
he and defendant were talking in the street when the officers pulled up and stopped them. Miller
claimed that he was carrying a gun and “so [he] tossed it.” Miller continued that the officers
knocked him to the ground and took the handgun. The officers then removed heroin and crack
cocaine from his person. Miller denied that the officers found any handgun or narcotics in their
search of defendant. The prosecution impeached Miller’s credibility with evidence of his past
conviction for a crime involving theft.

       The defense investigator used the address listed in the police report to canvass the
neighborhood in an attempt to find a witness to support Miller’s description of events. Had

                                                -3-
defense counsel reviewed the footage and discovered the error earlier, the investigator could
have canvassed the correct neighborhood in search of witnesses.2 Defendant made no offer of
proof that anyone on Keating Street witnessed the events and could have been discovered by
canvassing the neighborhood, let alone that someone would have corroborated Miller’s
testimony. Accordingly, defendant cannot establish that this error was outcome determinative.

       Defendant further contends that defense counsel should have insisted upon fingerprint
analysis of the handgun and narcotic packets placed into evidence to support his theory that
Miller had possessed these items. In the trial court, the prosecutor indicated that such analysis
was not conducted because the officers personally witnessed defendant in possession of the gun
and drugs. Neither the lack of defendant’s fingerprints or the presence of Miller’s fingerprints
would have overwhelmed this observation. Such evidence simply would have supported that
Miller handled the items before defendant placed them in his pocket. Accordingly, we discern
no error in this regard, let alone error that was outcome determinative.

                            III. PROSECUTORIAL MISCONDUCT

        Defendant contends that the prosecutor engaged in improper conduct by bolstering the
credibility of the prosecution witnesses and denigrating the defense. We generally review de
novo prosecutorial misconduct claims, considering “whether the defendant was denied a fair
trial.” People v Dunigan, 299 Mich App 579, 588; 831 NW2d 243 (2013). We review
unpreserved claims for plain error affecting the defendant’s substantial rights. People v
Meissner, 294 Mich App 438, 455; 812 NW2d 37 (2011). “Reversal is warranted only when
plain error resulted in the conviction of an actually innocent defendant or seriously affected the
fairness, integrity, or public reputation of judicial proceedings.” Id. In addition, reversal is not
required “where a curative instruction could have alleviated any prejudicial effect.” People v
Bennett, 290 Mich App 465, 476; 802 NW2d 627 (2010) (quotation marks and citation omitted).
“[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and impartial
trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). In the face of a
misconduct challenge, we “must examine the entire record and evaluate the prosecutor’s remarks
in context.” Id. at 64. Prosecutorial comments must be read as a whole and “evaluated in light
of defense arguments and the relationship the comments bear to the evidence admitted at trial.”
Id.

        Defendant asserts that the prosecutor improperly vouched for the credibility of
prosecution witness, Detroit Police Officer James Napier. The prosecutor began her closing
argument by positing that Officer Napier was “honest” about the mistake he made when
recording the house address in the police report. In this regard, the prosecutor continued,
“Officer Napier testified credibly, he testified consistently.” The prosecutor described how
Officer Napier returned to the scene upon learning of his mistake so he could accurately correct
the information. The prosecutor urged the jury that there was no reason to assume that Officer


2
  Unfortunately, the camera did not capture images of defendant or Miller until the officers
ordered defendant to place his hands on the hood of the squad car. Accordingly, there is no
physical evidence to either corroborate or contradict Miller’s testimony.


                                                -4-
Napier would “lie to set one of these guys up” because he did not know them. Defense counsel’s
closing argument focused on attacking Officer Napier’s testimony and credibility. In rebuttal,
the prosecutor remained with that theme. In this regard, the prosecutor argued, “He is a Detroit
Police officer he’s doing his job. You think he’s going to put his career on the line to set up
some guy that he has no history with no past with no reason to lie on. . . .” Moreover, the
prosecutor posited, “it is more likely for a felon who is a thief who is probably a drug addict to
lie for his nephew than it is for an officer to lie about something where his career is on the line.”
The prosecutor noted that despite Officer Napier’s mistaken recording of the address, he “was
still credible beyond a reasonable doubt.”

        “Generally, prosecutors are accorded great latitude regarding their arguments, and are
free to argue the evidence and all reasonable inferences from the evidence as they relate to their
theory of the case.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). While a
prosecutor may not vouch for the credibility of the prosecution’s witnesses “by suggesting that
[s]he has some special knowledge of the witnesses’ truthfulness,” he or she is free to argue that a
witness should be believed on the basis of the facts in evidence. Id.

         The prosecutor did not improperly vouch for Officer Napier’s credibility. Nearly the
entire defense was geared at impeaching the officer and convincing the jury that he lied about the
events on May 17. In his closing argument, defense counsel repeatedly asked the jury to find
Officer Napier not credible based on Miller’s testimony, the mistake that Officer Napier made
regarding the address, and the fact that Officer Napier’s partner did not testify at trial. As a
result, nearly the entirety of the prosecutor’s closing and rebuttal was devoted to debunking these
theories. The prosecutor outlined Officer Napier’s mistake about the address and how he
remedied that error. The prosecutor argued that Officer Napier’s mistake was a simple
transcription error, not a purposeful scheme to frame defendant or Miller for any crime. These
arguments directly responded to defense counsel’s credibility attack and were based on the trial
evidence, including the dash-cam footage. Accordingly, the prosecutor’s remarks were not
improper. See People v Duncan, 402 Mich 1, 16; 260 NW2d 58 (1977) (“The prosecutor’s
remarks in this case were either proper argument based upon the evidence presented or responses
to matters raised by the defendants in their proofs and closing argument. Certain of the latter
remarks, although if standing alone could be seen as improper, do not constitute reversible error
in this case because of their responsive nature[.]”).

        Defendant also contends that the prosecutor improperly denigrated Miller’s credibility
during closing and rebuttal. The prosecutor made comments such as “he doesn’t know his left
foot from his right foot,” “he’s a thief[,] [y]ou can consider that when you consider his credibility
and truthfulness,” “he probably is a drug addict that’s probably why he was there in that area,”
“maybe he’s been paid off or bribed[,] [m]aybe he wants to help his nephew,” and “it is more
likely for a felon who is a thief who is probably a drug addict to lie for his nephew than it is for
an officer to lie about something where his career is on the line.”

        While a prosecutor must tread carefully not to cross the line of propriety, a prosecutor is
“permitted to argue from the facts that defendant or defendant’s witnesses were unworthy of
belief.” Dobek 274 Mich App at 67. Record evidence supported that Miller was a convicted
felon who had engaged in theft crimes. That Miller was a drug addict arguably could be inferred
from evidence that he and defendant were witnessed leaving a vacant home where drugs are sold,

                                                -5-
Miller’s admission to possessing drugs on the day in question, and Miller’s testimony that he had
abused crack cocaine in the past. And that Miller’s relationship with defendant gave him a
greater motive to fabricate events than Officer Napier, who was a complete stranger to defendant
and Miller, was a fair argument based on the evidence and in response to defense counsel’s
arguments. See People v Layher, 464 Mich 756, 763-764; 631 NW2d 281 (2001) (discussing the
relevance of evidence of witness bias). Accordingly, although the prosecutor employed strong
language, we discern no ground for reversal.

      Finally, defendant argues that the prosecutor improperly characterized defense counsel’s
argument and denigrated his integrity. Defendant challenges the following comments:

       And to say that [Napier is] lying about certain things or is mistaken about things
       he is not [sic] he’s trying to blow smoke in your face in hopes that the illusion
       will be that Officer Napier is some really inconsistent terrible officer.

                                              * * *

       There are things that are not issues the defense counsel is making a big issue
       about because he’s trying to distract you from the truth.

       In People v Wise, 134 Mich App 82, 101-102; 351 NW2d 255 (1984), this Court stated:

       The prosecutor may not question defense counsel’s veracity. When the
       prosecutor argues that the defense counsel himself is intentionally trying to
       mislead the jury, he is in effect stating that defense counsel does not believe his
       own client. This argument undermines the defendant’s presumption of innocence.
       Such an argument impermissibly shifts the focus from the evidence itself to the
       defense counsel’s personality. [Citations omitted.]

        Taken in isolation, the prosecutor’s comments appear to improperly suggest that defense
counsel was “intentionally trying to mislead the jury.” Taken in context after reviewing the
entirety of closing and rebuttal arguments, however, we decline to find that the prosecutor
engaged in misconduct. In this regard, we find instructive People v Watson, 245 Mich App 572,
592-594; 629 NW2d 411 (2001). In Watson, this Court discerned that the prosecutor had
improperly suggested that defense counsel attempted to distract the jury from the truth.
Reversal was not warranted, however, because “[t]he prosecutor’s comments . . . were made in
rebuttal to defense counsel’s closing argument, in which defense counsel emphasized
discrepancies between the various accounts of the events . . . .” Id. at 593. In this case, the
challenged comments occurred in rebuttal to defense counsel’s closing argument, during which
defense counsel stressed that Miller’s and Officer Napier’s testimonies conflicted. Defense
counsel repeatedly stated that Officer Napier engaged in a “con job” or had made a mistake. It
was not improper for the prosecutor to respond by emphasizing that defense counsel was focused
on the little inconsistencies, and the jury should be focused on the “truth of the big picture.” Id.

       Moreover, the trial court instructed the jury that the attorneys’ statements were not
evidence, that the jury must decide the facts of the case, and that this includes whether the
witnesses were telling the truth. “Jurors are presumed to follow their instructions, and


                                                -6-
instructions are presumed to cure most errors.” People v Abraham, 256 Mich App 265, 279; 662
NW2d 836 (2003). Therefore, even if the prosecutor erred, reversal would not be warranted.3

                             IV. ILLEGAL SEARCH AND SEIZURE

         Prior to trial, defense counsel sought suppression of the handgun and narcotics evidence,
challenging the legality of the search and seizure. The trial court denied defendant’s motion and
the evidence was admitted at trial. We review de novo a trial court’s ruling on a suppression
motion. People v Steele, 292 Mich App 308, 313; 806 NW2d 753 (2011). We will not “disturb
a trial court’s factual findings unless those findings are clearly erroneous. A factual finding is
clearly erroneous if it leaves the Court with a definite and firm conviction that the trial court
made a mistake.” Id. (citations omitted).

        Both the United States and Michigan Constitutions protect against unreasonable searches
and seizures. US Const Am IV; Const 1963, art 1, § 11. A police officer may conduct an
investigative stop, or Terry4 stop, if he “has a reasonable, articulable suspicion that criminal
activity is afoot.” Steele, 292 Mich App at 314. To determine if an officer had reasonable
suspicion, the trial court should consider whether “the facts known to the officer at the time of
the stop would warrant an officer of reasonable precaution to suspect criminal activity.” Id. This
determination is made case-by-case and under the totality of the circumstances. Id. The trial
court should give deference to the “experience of law enforcement officers and their assessments
of criminal modes and patterns.” Id. at 315. An officer’s subjective intent is irrelevant in
determining whether a stop was supported by reasonable, articulable suspicion of unlawful
activity. People v Dillon, 296 Mich App 506, 509; 822 NW2d 611 (2012). In addition, a search
or seizure must be justified at its inception. People v Williams, 472 Mich 308, 314; 696 NW2d
636 (2005).

         Defendant ignores one fact that precipitated the officers’ decision to stop him—it is
unlawful in the city of Detroit “for any person . . . to enter a vacant building, or the property on
which the vacant building is located, without the express written authorization of the property
owner . . . .” Detroit Ordinances, § 38-4-1. When a police officer knows that a law is being
violated, he may lawfully detain the offender. See People v Chapo, 283 Mich App 360, 366; 770
NW2d 68 (2009) (“A police officer who witnesses a civil infraction may stop and temporarily
detain the offender for the purpose of issuing a written citation.”). Officer Napier observed the
house that defendant exited as vacant—the windows were boarded up, and the front door barely
hung on the hinges. Furthermore, Officer Napier had personal knowledge that two months
earlier, the house had been vacant. Officer Napier therefore had probable cause to believe that



3
  As none of defendant’s challenges to the prosecutor’s commentary warrant relief, there is no
ground to find defense counsel ineffective for failing to object. Similarly, defendant cannot
establish that the cumulative effect of the prosecutor’s highly responsive arguments justifies
reversal.
4
    Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).


                                                -7-
defendant was in violation of Detroit Ordinance § 38-4-1, and could lawfully detain defendant to
issue a citation.

        When defendant saw the police car, he “immediately turned around and faced away from
[police].” Defendant refused to comply with Officer Napier’s first three orders to turn around
and face the officers. When defendant finally did turn around, he suspiciously bent over and dug
in his pants pockets with both hands. Officer Napier reasonably feared that defendant may
possess a weapon, putting the officer’s safety in jeopardy. See People v Custer, 465 Mich 319,
328-330; 630 NW2d 870 (2001) (upholding the constitutionality of a patdown search
promulgated by the officer’s fear that the defendant had a weapon). Officer Napier’s fears were
justified as a handgun fell from defendant’s shorts when he finally raised his hands into the air as
instructed. Defendant’s possession of a weapon gave the officer probable cause to arrest
defendant. The officers never actually initiated a Terry stop. Instead, police initiated a stop to
issue a civil infraction, which was quickly transformed into a lawful arrest based on the weapon.
As such, defendant could establish no ground to suppress the handgun and narcotic evidence at
trial.

       We affirm.

                                                             /s/ Michael J. Talbot
                                                             /s/ William B. Murphy
                                                             /s/ Elizabeth L. Gleicher




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