                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 11, 2014
               Plaintiff-Appellee,

v                                                                    No. 316046
                                                                     Washtenaw Circuit Court
DEANDRE LAMONT SOLOMON,                                              LC No. 09-001985-FH

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and STEPHENS, JJ.

PER CURIAM.

     Defendant was convicted by a jury of third-degree criminal sexual conduct (CSC-III),
MCL 750.520d. He was sentenced to 30 to 180 months’ imprisonment. We affirm.

        Defendant argues that he was denied a fair trial when the trial court gave a supplemental
jury instruction regarding unanimity. We review preserved claims of instructional error de novo
by examining the instructions as a whole to determine whether they “adequately protected the
defendant’s rights by fairly presenting to the jury the issues to be tried.” People v Martin, 271
Mich App 280, 337-338; 721 NW2d 815 (2006).

        Defendant was charged with CSC-III for engaging in a single act of sexual penetration
with the victim under one or both of two separate circumstances. See MCL 750.520d(1)(a)
(victim at least 13 years of age but under 16 years of age) and (1)(b) (force or coercion is used to
accomplish the sexual penetration). Before it was sent to deliberate, the trial court properly
instructed the jury regarding the elements of the offense and also instructed it that its verdict had
to be unanimous. When the jury indicated during deliberations that it was “hopelessly
deadlocked,” the trial court gave the following supplemental instruction:

       You do not need to be unanimous on either of the alternate theories;
       complainant’s age or force or coercion because they are merely different ways the
       offense can be proven. So long as each juror believes that at least one theory has
       been satisfied.

Approximately 20 minutes later, the jury reached a verdict finding defendant guilty of CSC-III
on the basis that the victim was between 13 and 16 years of age.



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         Defendant claims that this supplemental instruction was a misstatement of the law,
impermissibly confused the jury, and coerced the jury into reaching a guilty verdict. We
disagree. Michigan provides criminal defendants the right to a unanimous jury verdict. Const
1963, art 1, § 14; MCR 6.410(B). “In order to protect a defendant’s right to a unanimous verdict,
it is the duty of the trial court to properly instruct the jury regarding the unanimity requirement.”
People v Cooks, 446 Mich 503, 511; 521 NW2d 275 (1994). As noted above, a person commits
CSC-III when he engages in sexual penetration with the victim under one or more circumstances.
“When a statute lists alternative means of committing an offense which in and of themselves do
not constitute separate and distinct offenses, jury unanimity is not required with regard to the
alternate theory.” People v Johnson, 187 Mich App 621, 629-630; 468 NW2d 307 (1991).
Accordingly, defendant could have been properly convicted of CSC-III even if some jurors
believed that he engaged in sexual penetration with the victim while she was between the ages of
13 and 16, while others believed that he engaged in sexual penetration with the victim through
force or coercion. See People v Gadomski, 232 Mich App 24, 31; 592 NW2d 75 (1998). The
supplemental instruction was thus a proper statement of law that very clearly presented the jury
with information regarding its obligations. Moreover, because defendant could have been
convicted absent complete unanimity with respect to the alternative theories, the jury’s verdict
did not constitute an impermissible compromise verdict. See People v Smielewski, 235 Mich
App 196, 202; 596 NW2d 636 (1999).

        Defendant next argues that he was denied his right to due process by an approximately
18-month pre-arrest delay, and that his trial counsel was ineffective for failing to move for
dismissal on this ground. We review this unpreserved claim for plain error affecting substantial
rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

        “A challenge to prearrest delay implicates constitutional due process rights. . . .” People
v Cain, 238 Mich App 95, 108; 605 NW2d 28 (1999). However, the mere delay between the
time of the commission of the offense and arrest does not give rise to a due process violation
absent a showing of “actual and substantial prejudice” and an intent by the prosecution to gain a
tactical advantage. People v Patton, 285 Mich App 229, 237; 775 NW2d 610 (2009) (citation
omitted). “Substantial prejudice is that which meaningfully impairs the defendant’s ability to
defend against the charge in such a manner that the outcome of the proceedings was likely
affected.” Id. (citation omitted). Defendant has presented no evidence that the prosecution tried
to gain a tactical advantage by the delay. Moreover, he has presented no evidence that the delay
“meaningfully impair[ed]” his defense. Id. There was thus no plain error and defendant’s
lawyer cannot be faulted for failing to move for dismissal on this ground. People v Fonville, 291
Mich App 363, 384; 804 NW2d 878 (2011) (defense counsel not ineffective for failing to
advance a meritless position or make a futile motion).

         Defendant also argues that he was denied his constitutional right to a speedy trial and that
his trial counsel was ineffective for failing to move for dismissal on this ground. We review this
unpreserved claim for plain error affecting substantial rights. Carines, 450 Mich at 763-764.

       “The United States Constitution and the Michigan Constitution guarantee a criminal
defendant the right to a speedy trial.” Patton, 285 Mich App at 235 n 4, citing US Const Am VI
and Const 1965, art 1, § 20. See also MCR 6.004; MCL 768.1. In determining whether a
defendant has been denied the right to a speedy trial, this Court looks to four factors, including

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(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) prejudice to the defendant from the delay. Cain, 238 Mich App at
111, citing Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). Prejudice is
presumed if the delay is over 18 months; to the contrary, if the delay is less than 18 months, the
defendant must demonstrate prejudice. Cain, 238 Mich App at 112. “The time for judging
whether the right to a speedy trial has been violated runs from the date of the defendant’s arrest.”
Patton, 285 Mich App at 236 (internal quotations and citation omitted).

        As to the first factor, length of the delay, the record does not clearly indicate when
defendant was formally arrested, but he was arraigned on December 14, 2010. Thus, the delay
between defendant’s arrest and his February 25, 2013 trial was no less than 24 months.
Defendant was therefore presumptively prejudiced, and we must consider the other Barker
factors to determine if he was deprived of the right to a speedy trial. People v Williams, 475
Mich 245, 262; 716 NW2d 208 (2006).

        The second factor, reasons for the delay, weighs against defendant. A review of the
record reveals that approximately three months of the delay—from March 1, 2011 to May 17,
2011—was attributable to the time it took to adjudicate defendant’s initial requests for a
competency examination and an evaluation of his criminal responsibility. The time needed to
adjudicate defense motions is charged to the defendant. People v Gilmore, 222 Mich App 442,
461; 564 NW2d 158 (1997). An additional three months—from August 8, 2011 to November
14, 2011—was attributable to defendant’s arrest for an unrelated CSC crime and subsequent
failure to appear for a pretrial conference, thus necessitating a rescheduling of that conference.
Additional delay was attributable to the fact that, on February 6, 2012—the date originally set for
trial—defendant indicated, to the surprise of the prosecution and even his own attorney, that he
wished to reject a plea offer and proceed to trial. Another two months—from April 13, 2012 to
June 14, 2012—was attributable to the time it took to adjudicate defendant’s second request for a
competency examination. Finally, further delay was attributable to defendant’s stipulations to
adjourn pretrial conferences (one of which was at his request) and the time it took to secure new
counsel after his first two attorneys withdrew. In sum, defendant was responsible for
substantially more of the delay than the prosecution. While some of the delay could have been
attributable to trial court congestion, such delays “are given a neutral tint and are assigned only
minimal weight in determining whether a defendant was denied a speedy trial.” People v
Waclawski, 286 Mich App 634, 666; 780 NW2d 321 (2009).

        The third factor, whether defendant asserted his right to a speedy trial, weighs against
defendant because he never formally asserted his right to a speedy trial. Although there was
some informal discussion at the November 14, 2011 pretrial conference regarding defendant’s
wish for an “immediate” trial, that request came almost one year after he was arrested. A
defendant’s failure to promptly assert his right to a speedy trial weighs against a subsequent
claim that this right was violated. People v Rosengren, 159 Mich App 492, 508; 407 NW2d 391
(1987).

       Finally, with respect to prejudice, defendant “does not offer much of an explanation
regarding how he was prejudiced by the delay.” Waclawski, 286 Mich App at 668. There are
two types of prejudice which can result from unreasonable delay: prejudice to the defendant
personally, such as where he is incarcerated pending trial, and prejudice to his defense, such as

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where the delay leads to the inability to find witnesses or a fading of witnesses’ memories. Id.;
Gilmore, 222 Mich App at 461-462. Here, while defendant was incarcerated pending trial, it was
not for the charged offense, but rather for an unrelated CSC offense, to which he pleaded guilty
and was sentenced to prison. Moreover, defendant makes “no claim that because of the delay he
was somehow unable to defend himself.” Waclawski, 286 Mich App at 669. Accordingly,
defendant was not denied his right to a speedy trial and his trial lawyer was not ineffective for
failing to make a futile motion to dismiss on that basis. Fonville, 291 Mich App at 384.

        Defendant next argues that he was entitled to 575 days of jail credit for time served while
he was awaiting trial in this case. We disagree. “The question whether [a] defendant is entitled
to sentence credit pursuant to MCL 769.11b for time served in jail before sentencing is an issue
of law that we review de novo.” Waclawski, 286 Mich App at 688 (citation omitted).

       The record in this case indicates that defendant was released on bond on December 14,
2010. However, sometime in either late July or early August 2011, he was arrested for the
unrelated CSC-III offense in Wayne County. Defendant pleaded guilty to that offense and was
sentenced to 18 months’ imprisonment in September 2011. MCL 769.11b provides:

       Whenever any person is hereafter convicted of any crime within this state and has
       served any time in jail prior to sentencing because of being denied or unable to
       furnish bond for the offense of which he is convicted, the trial court in imposing
       sentence shall specifically grant credit against the sentence for such time served in
       jail prior to sentencing.

As the statute plainly states, a defendant is only entitled to sentence credit for time served as a
result of being denied or unable to furnish bond “for the offense of which he is convicted.” See
Waclawski, 286 Mich App at 688. Here, however, it is clear that the time defendant served in
jail/prison before sentencing in this case had nothing to do with this offense, but rather was for
an unrelated offense. Thus, he was not entitled to credit for that time under MCL 769.11b.

        Defendant nevertheless contends that he was entitled to credit for time served under due
process principles because of the improper delay between his arrest and trial, and further that the
trial court had discretion to grant him such credit. As to the first contention, we disagree that
principles of due process compelled a grant of jail credit: as discussed above, defendant was not
denied his right to a speedy trial. Moreover, while it is true that a sentencing court has discretion
to award jail credit not otherwise available to a defendant, People v Adkins, 433 Mich 732, 751 n
10; 449 NW2d 400 (1989), it is clear that the trial court properly exercised that discretion in this
case by declining to grant the request.

        Defendant next argues that he was denied a fair trial by the prosecution’s comments
during closing argument, and that his trial counsel was ineffective for failing to object to these
instances of misconduct. We review these unpreserved claims of prosecutorial misconduct for
plain error affecting substantial rights. Carines, 450 Mich at 763-764. In order to show that
prosecutorial error warrants relief, defendant must demonstrate that the prosecution’s comments
denied him a fair and impartial trial. People v Dobek, 274 Mich App 58, 63-64; 732 NW2d 546
(2007). Issues of prosecutorial misconduct are decided on a case by case basis by examining the
entire record and evaluating the remarks in context. People v Callon, 256 Mich App 312, 330;

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662 NW2d 501 (2003). Error requiring reversal cannot be found if a curative instruction “could
have alleviated any prejudicial effect” resulting from the remarks. Id. at 329-330.

        Defendant contends that the prosecution mischaracterized the evidence by asserting
during closing argument that there was no DNA or other physical evidence of the sexual assault
because of the delay in reporting. We agree. In actuality, the testimony from trial indicated that
the victim’s bed sheets were collected after she reported that defendant ejaculated onto them.
The investigating officer testified that he stored the bed sheets in the property room of the
Washtenaw County Sheriff’s Department, and had no explanation for why they were not tested
for DNA. Nonetheless, we conclude that defendant is not entitled to relief on this error. A
timely objection and curative instruction could have alleviated any possible prejudice resulting
from the prosecutor’s erroneous remark. Callon, 256 Mich App at 329-330. Moreover,
defendant’s trial counsel in fact alleviated any prejudice when he responded to the remark in his
own closing argument. In any event, the trial court properly instructed the jury that the
attorneys’ statements were not evidence and that the jury should only accept things that the
lawyers say that are supported by the evidence or by its own common sense and general
knowledge. These instructions “dispelled any prejudice arising from the prosecutor’s comment.”
Id. at 331. Absent a showing of prejudice, defendant was not deprived of a fair trial or the
effective assistance of counsel. People v Pickens, 446 Mich 298, 314; 521 NW2d 797 (1994).

        Defendant also contends that the prosecutor improperly bolstered the testimony of its
witnesses by vouching for their credibility. We disagree. A prosecutor may comment on the
credibility of her own witnesses and argue that the witnesses should be believed. People v
Bahoda, 448 Mich 261, 279; 531 NW2d 659 (1995). Here, a review of the record demonstrates
that the prosecutor’s comments were made in support of the victim’s and her mother’s credibility
after defense counsel had earlier attacked that credibility during his opening statement, during
cross-examination, and during his closing argument. The prosecutor did not base her comments
on some specialized knowledge of the witnesses’ truthfulness, but rather on the specificity of
their testimony, their demeanor on the witness stand, and their lack of motive to lie. There was
no plain error with respect to these comments, and defendant’s trial counsel cannot be faulted for
failing to raise a meritless objection. Fonville, 291 Mich App at 384.

        Defendant next argues that he was denied his right to a fair and impartial jury when a
former attorney was allowed to sit on the jury panel. According to defendant, this error was
compounded because, in light of his previous conviction for an unrelated CSC offense, defendant
was accompanied throughout trial by two MDOC corrections officers, and a retired attorney
would have “easily surmise[d]” that he was a convicted felon by the presence of the corrections
officers. He further asserts that his trial counsel was ineffective for failing to challenge the juror.
We review this unpreserved claim for plain error affecting substantial rights. Carines, 450 Mich
at 763-764.

        During voir dire, a potential juror indicated that he was a retired attorney. He elaborated
that he was formerly in the JAG Corps of the United States Army, where he had exposure to “a
couple” criminal sexual conduct cases, before spending the remainder of his professional career
as a medical malpractice defense attorney. Upon questioning from the trial court, the juror
expressed that his previous experience would not prevent him from rending a fair and impartial


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verdict, that he could keep an open mind, and that he had no religious or philosophical beliefs
that would prevent him from being a juror.

         A criminal defendant has a state and federal constitutional right to be tried by an
impartial jury. US Const, Am VI; Const 1963, art 1, § 20. See People v Miller, 482 Mich 540,
547; 759 NW2d 850 (2008). To that end, our Court Rules provide several grounds that would
justify challenging a juror for cause. In relevant part, MCR 2.511(D) provides that “[i]t is
grounds for a challenge for cause that the person . . . (2) is biased for or against a party or
attorney; (3) shows a state of mind that will prevent the person from rendering a just verdict, or
has formed a positive opinion on the facts of the case or on what the outcome should be; [or] (4)
has opinions or conscientious scruples that would improperly influence the person’s verdict . . . .”
Jurors are presumed to be fair and impartial until the contrary is shown. Miller, 482 Mich at 550
(citation omitted). “The burden is on the defendant to establish that the juror was not impartial
or at least that the juror’s impartiality is in reasonable doubt.” Id.

        Defendant has failed to meet his burden of demonstrating that the juror was not impartial.
First, the juror’s status as a retired attorney is not sufficient to rebut the presumption of
impartiality. See id. at 553. Second, defendant’s argument that the juror could have “easily
surmise[ed]” his status as a convicted felon is mere speculation. Regardless, the juror
affirmatively represented that his experience would not prevent him from rendering a fair and
impartial verdict, and that he could keep an open mind. There was no plain error.

        Moreover, defendant’s trial counsel was not ineffective for failing to use a preemptory
challenge to remove the juror. As this Court has previously noted, we have been historically
“disinclined to find ineffective assistance of counsel on the basis of an attorney’s failure to
challenge a juror” because it is the attorney, not this Court, who is present to observe “a potential
juror’s facial expressions, body language, and manner of answering questions.” People v Unger
(On Remand), 278 Mich App 210, 258; 749 NW2d 272 (2008). “A lawyer’s hunches, based on
his observations, may be as valid as any method of choosing a jury.” Id. (internal quotations and
citation omitted). In this case, defendant’s trial counsel was present during voir dire to observe
the body expressions, mannerisms, and answers of the juror in question. We will not second-
guess trial counsel’s determination that he had obtained a fair and impartial jury.

       Defendant next argues that he was denied a fair trial by the trial court’s decision to
shackle him during trial, and that his defense counsel was ineffective for failing to object to the
shackling. Although we agree that the shackling was unwarranted, and consequently that
defendant’s attorney was ineffective for failing to object to that unjustified shackling, we
conclude that defendant has failed to demonstrate any prejudice.

        Generally, this Court reviews a trial court’s decision to shackle a defendant for an abuse
of discretion under the totality of the circumstances. People v Dixon, 217 Mich App 400, 404-
405; 552 NW2d 663 (1996). Here, however, defendant failed to preserve the issue. This Court
reviews unpreserved issues, whether constitutional or nonconstitutional, under the plain error
standard. Carines, 460 Mich at 764.

       “The Sixth Amendment guarantee of the right to a fair trial means that ‘one accused of a
crime is entitled to have his guilt or innocence determined solely on the basis of the evidence

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introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or
other circumstances not adduced as proof at trial.’ ” People v Banks, 249 Mich App 247, 256;
642 NW2d 351 (2002), quoting Taylor v Kentucky, 436 US 478, 485; 98 S Ct 1930; 56 L Ed 2d
468 (1978). Freedom from shackling has long been recognized as an important component of a
fair trial “because having a defendant appear before a jury handcuffed or shackled negatively
affects the defendant’s constitutionally guaranteed presumption of innocence . . .” Banks, 249
Mich App at 256. See also Dixon, 217 Mich App at 404. “Consequently, the shackling of a
defendant during trial is permitted only in extraordinary circumstances.” Id. at 404.
Specifically, shackling is permitted only upon a finding, supported by record evidence, that it is
necessary to prevent the escape of the defendant, to prevent the defendant from injuring others in
the courtroom, or to maintain an orderly trial. People v Payne, 285 Mich App 181, 186; 774
NW2d 714 (2009); Dixon, 217 Mich App at 404.

        At the outset, the trial court plainly erred in shackling defendant at the legs during these
proceedings. As noted above, a trial court may only order a defendant to wear restraints for
particularized reasons, which must be supported by record evidence. Payne, 285 Mich App at
186; Dixon, 217 Mich App at 404. We previously granted defendant’s motion for remand on this
issue. People v Soloman,1 unpublished order of the Court of Appeals, entered February 26, 2014
(Docket No. 316046). At the evidentiary hearing, the trial court justified its decision to shackle
defendant by using mere generalities; i.e., that defendant was already incarcerated for a CSC
offense, that he was facing charges on another CSC offense, that the courtroom in which the trial
was held was easily escapable and lacked sufficient security measures, and that disturbances
sometimes occurred in the courtroom. Absent some record evidence that defendant himself
posed a threat to security, that he was in fact a flight risk, or that he would in fact disrupt trial if
not shackled, the trial court’s belated justifications were simply not sufficient under our
jurisprudence. Consequently, defense counsel’s failure to object constituted a deficient,
objectively unreasonable performance. See Pickens, 446 Mich at 303.

        Notwithstanding the above conclusions, we conclude that defendant has failed to
demonstrate prejudice. “A defendant is not prejudiced if the jury was unable to see the shackles
on defendant.” Payne, 285 Mich App at 186, quoting People v Horn, 279 Mich App 31, 36; 755
NW2d 212 (2008). At the evidentiary hearing, the trial court indicated that it had reviewed the
video recordings of defendant’s trial and had found no instance in which defendant’s leg
restraints were visible to the jury; defendant wore pants that could have covered the restraints,
was seated at a table that had privacy panels on both sides and the front, and never walked
anywhere in the jury’s presence. Moreover, each time the jury entered the courtroom, its view of
defendant was obstructed by a podium, the prosecution table, the officer in charge and the
prosecuting attorney sitting at that table, and defendant’s own attorney. Defendant appeared to
keep his legs well under the table at all times, and his arms were never restrained. Although




1
    It appears there was a clerical error with regard to the spelling of defendant’s last name.


                                                   -7-
defendant had indicated in his motion to remand that he believed at least four jurors could see his
leg restraints during trial, no such evidence was presented at the evidentiary hearing.2

        In reaching the above conclusion, we acknowledge the affidavit of defendant’s appellate
attorney, included with defendant’s second motion for remand,3 which averred that appellate
counsel sent “inquiries” through the mail to the jurors after the evidentiary hearing and received
a response from one juror affirming that he saw defendant’s shackles. However, while the
affidavit was required to be filed with defendant’s motion for remand, MCR 7.211(C)(1), it is not
evidence. In any event, the affidavit does not indicate that the juror was at all influenced by what
he or she allegedly saw. A defendant does not automatically establish prejudice upon a finding
that the jury inadvertently saw his shackles. Horn, 279 Mich at 37 (citation omitted). Thus,
even if we were to consider the affidavit, it fails to establish that defendant was prejudiced.
Accordingly, defendant was not deprived of a fair trial. Moreover, because he suffered no
prejudice, defendant was not denied the effective assistance of counsel. See Pickens, 446 Mich
at 314.

        Defendant finally argues that the trial court erred in scoring five points under offense
variable (OV) 3 of the legislative sentencing guidelines. Under the sentencing guidelines, we
review a trial court’s factual determinations for clear error to determine whether they are
supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions
prescribed by statute, i.e., the application of the facts to the law, is a question of statutory
interpretation” that we review de novo. Id.

        OV 3 scores points for the degree of physical injury to a victim and provides that five
points may be assessed where “[b]odily injury not requiring medical treatment occurred to a
victim.” MCL 777.33(1)(3). “ ‘[B]odily injury’ encompasses anything that the victim would,
under the circumstances, perceive as some unwanted physically damaging consequence.”
People v McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011). The trial court determined
that five points were appropriate because the victim testified that defendant forced her into
having sexual intercourse by grabbing onto her arms and punching her in the stomach before
pinning her down on the bed. It was reasonable for the trial court to infer from this testimony
that the victim suffered a bodily injury, even if such injury was minimal. Therefore, there was
sufficient evidence to support a score of five points under OV 3.


2
  We note that the day before the evidentiary hearing, the trial court denied defendant’s request
to adjourn that hearing so he could have additional time to subpoena the jurors who potentially
saw defendant’s leg restraints. Defendant does not challenge that decision, and we note that the
trial court was within its discretion to deny the motion. At the time the motion was heard, the
trial court was days away from the 56-day deadline within which to hold the evidentiary hearing,
as instructed in our remand order. Moreover, at the time the motion was heard, defendant had
provided the trial court with absolutely no evidence to suggest that any of the jurors saw
defendant’s leg restraints.
3
    Defendant’s second motion for remand was denied.


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Affirmed.

                  /s/ Amy Ronayne Krause
                  /s/ Kirsten Frank Kelly
                  /s/ Cynthia Diane Stephens




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