                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 February 23, 2016
              Plaintiff-Appellee,

v                                                                No. 324084
                                                                 Wayne Circuit Court
ANTHONY ALEXANDER MADDOX,                                        LC No. 14-004639-FC

              Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and SAWYER and STEPHENS, JJ.

PER CURIAM.

        A jury convicted defendant of first-degree premeditated murder, MCL 750.316(1)(a),
felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the
commission of a felony, MCL 750.227b. The trial court sentenced defendant to concurrent terms
of life imprisonment for the murder conviction, and two to five years’ imprisonment for the
felon-in-possession conviction, to be served consecutive to a two-year term of imprisonment for
the felony-firearm conviction. Defendant appeals as of right. We affirm.

        A jury convicted defendant of fatally shooting Casey Durham on September 27, 2012, in
Highland Park. The shooting occurred at Antwon Wakefield’s house. The prosecution
presented evidence that defendant and Durham were in the living room of Wakefield’s house,
having a conversation about money that defendant owed to Durham. After the discussion ended,
Wakefield and Durham engaged in further conversation when defendant emerged from an
enjoining room and shot Durham. Christopher Stevens, who was upstairs, came downstairs after
hearing three gunshots, and saw defendant holding a pistol pointed toward Durham’s dead body.
No one reported the incident to the police at that time. Two days later, Durham’s severed head
and an arm were found inside a house in Detroit, and his remaining body parts were
subsequently found behind a different house. In December 2013, the police became aware of
defendant as a suspect, and Wakefield, Stevens, and Wakefield’s girlfriend, Samantha Herd,
ultimately gave police statements about the shooting. The defense denied that defendant was the
perpetrator, and argued that the prosecution witnesses had motives to lie, and that the police
investigation was not reliable.




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                          I. FELON-IN-POSSESSION STIPULATION

       Pursuant to the parties’ stipulation, the jury was informed that defendant had previously
been convicted of a felony. Defendant asserts that this procedure is unfairly prejudicial and
denied him a fair trial. We disagree.

        Defendant was charged with being a felon in possession of a firearm. In People v
Mayfield, 221 Mich App 656, 660; 562 NW2d 272 (1997), this Court adopted safeguards for
felon-in-possession charges that include, as occurred in this case, the introduction of an
unspecified felony conviction through a stipulation. Such a stipulation minimizes the possibility
of prejudice resulting from the introduction of evidence of a defendant’s prior conviction, which
is necessary to establish his status as a convicted felon. This Court has expressly approved this
procedure as an adequate method for safeguarding a defendant’s rights. People v Green, 228
Mich App 684, 691-692; 580 NW2d 444 (1998).

        “When the parties stipulate a set of facts, the stipulated facts are binding on the court[.]”
People v Metamora Water Serv, Inc, 276 Mich App 376, 385; 741 NW2d 61 (2007). A party
cannot ask the court to accept a stipulation and then submit on appeal that the acceptance was
erroneous. People v McCray, 210 Mich App 9, 14; 533 NW2d 359 (1995). By stipulating that
he was previously convicted of a specified felony that prohibited him from lawfully possessing a
firearm, defendant waived appellate review of this issue.               Waiver is the intentional
relinquishment or abandonment of a known right, and a defendant who waives a right
extinguishes any underlying error, precluding appellate review. People v Vaughn, 491 Mich
642, 663; 821 NW2d 288 (2012). Although defendant argues that he should have been allowed
to plead no contest or guilty to the charge outside the presence of the jury, there is no indication
in the record that he ever offered to plead guilty to the charge or asked to bifurcate the charges.
Rather, the record discloses that the stipulation was entered into with defendant and defense
counsel’s consent. Defendant cannot approve a course of action in the trial court and then object
to that action on appeal. People v Kowalski, 489 Mich 488, 505; 803 NW2d 200 (2011).
Consequently, we reject this claim of error.

                                II. PROSECUTOR’S CONDUCT

        Defendant argues that the prosecutor engaged in misconduct that denied him a fair trial
when he suggested that the jury convict defendant as part of its civic duty, and vouched for the
credibility of prosecution witness Herd. Again, we disagree. Because defendant did not object
to the prosecutor’s questions or remarks in closing argument, these claims are unpreserved. We
review unpreserved claims of prosecutor misconduct for plain error affecting defendant’s
substantial rights. People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014). This Court
will not reverse if the alleged prejudicial effect of the prosecutor’s conduct could have been
cured by a timely instruction. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).

        Defendant argues that the prosecutor urged the jury to convict him to help stop the
senseless violence in Wayne County by referencing crime statistics during his direct examination
of a police sergeant. Defendant cites only the emphasized portion in the following exchange:



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       Q. And considering the date of this offense being September 27th of 2012
and the time that you’re finally developing a suspect, Anthony Maddox over a
year later, did that pose any problems to you in acquiring cell phones [sic]
record[s]?

       A. Yes, it would.

       Q. What?

       A. They only hold—the systems usually purges [sic] after about a year,
the phone records. That’s what we were running into problems with.

       Q. Okay. And how many years have you been a detective investigating
homicide cases?

       A. Four years.

        Q. And how many homicide investigations have you conducted during
that span of time if you can estimate?

       A. Well, that’s a good question.

       Q. Would it be over 60?

       A. Yes, it [sic] be over 60.

        Q. And of these investigations would you say the majority of them are
investigation that you’re taking on soon after a crime has been committed and a
suspect has been identified?

       A. I’m sorry. Repeat that again.

       Q. Would you say or assume that a majority of these investigations that
you have been involved in involve investigations that a suspect in a crime scene
has been developed quickly?

       A. Can’t say all of them. No, develop quickly. No.

       Q. But in some of those [investigations] you have scenes that develop
quickly and suspects identified quickly and some that you don’t?

       A. Yes.

       Q. Is there a difference or a difficulty of one versus the other?

       A. Yes. When suspects are identified quickly, we are able to get evidence
in a much expedited fashion, phone records and things of that nature.



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               Q. And did that pose an issue to you in your investigation in this matter?

               A. Yes. [Emphasis added.]

        A prosecutor may not argue that jurors should convict a defendant as part of their civic
duty. People v Cox, 268 Mich App 440, 452; 709 NW2d 152 (2005). Such an argument is
improper because it appeals to the fears and prejudices of the jurors, thereby injecting issues
broader than the defendant’s guilt or innocence into trial. People v McGhee, 268 Mich App 600,
636; 709 NW2d 595 (2005). Viewed in context, the challenged questions were not a suggestion
that the jury convict defendant on the basis of civic duty. It is apparent that the testimony was
elicited to show the sergeant’s investigation experience, thereby establishing a foundation for the
sergeant’s testimony about the limitations and difficulties of developing evidence in cases, such
as this one, when a suspect is not immediately revealed. Indeed, defense counsel emphasized the
lack of any physical evidence, including cell phone records, during both opening statement and
closing argument, and when cross-examining the sergeant. Further, a prosecutor’s good-faith
effort to admit evidence does not constitute misconduct. People v Dobek, 274 Mich App 58, 72;
732 NW2d 546 (2007). There is nothing in the record to support that the prosecutor acted in bad
faith. The questions were not intended to inject issues broader than defendant’s guilt or
innocence, and the prosecutor was not “encouraging jurors to suspend their powers of
judgment.” People v Thomas, 260 Mich App 450, 453-454; 678 NW2d 631 (2004).
Consequently, the prosecutor’s questions did not constitute a civic duty argument, and were not
plainly improper.

       We also disagree with defendant’s claim that the prosecutor improperly vouched for
Samantha Herd’s credibility during closing argument. Defendant correctly observes that a
prosecutor may not vouch for the credibility of a witness by conveying that he has some special
knowledge that the witness is testifying truthfully. People v Knapp, 244 Mich App 361, 382;
624 NW2d 227 (2001). However, prosecutors have great latitude when arguing at trial. People
v Fyda, 288 Mich App 446, 461; 793 NW2d 712 (2010). They may argue the evidence and all
reasonable inferences that arise from the evidence as they relate to their theory of the case, and
they need not state their inferences in the blandest possible language. People v Bahoda, 448
Mich 261, 282; 531 NW2d 659 (1995); Dobek, 274 Mich App at 66.

        The prosecutor did not suggest that he had some special knowledge that Herd was
credible. The prosecutor’s remarks emphasizing Herd’s courage in coming forward and her
transparency about her lifestyle were part of a permissible argument regarding credibility that
was focused on countering the defense implication that Herd was an untrustworthy drug addict
and not credible. The prosecutor’s remarks were made in the context of providing reasons,
grounded in the evidence, why Herd should be believed. The prosecutor noted that Herd made
no effort to conceal her prostitution and drug-related history. In his closing argument, the
prosecutor urged the jury to evaluate Herd’s testimony and demeanor, discussed the reliability of
her testimony, and argued that there were reasons from the evidence to conclude that defendant
was guilty of the charged crimes. The prosecutor’s argument was responsive to the evidence and
the theories presented at trial and, viewed in context, was not clearly improper.




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        Moreover, a timely objection to the challenged remarks could have cured any perceived
prejudice by obtaining an appropriate cautionary instruction. See Watson, 245 Mich App at 586.
And even though defendant did not object, the trial court instructed the jury that the lawyers’
statements and arguments are not evidence, that the jury was to decide the case based only on the
properly admitted evidence, and that the jury was to follow the court’s instructions. These
instructions were sufficient to dispel any possible prejudice and to protect defendant’s substantial
rights. People v Long, 246 Mich App 582, 588; 633 NW2d 843 (2001). It is well established
that jurors are presumed to follow their instructions. People v Graves, 458 Mich 476, 486; 581
NW2d 229 (1998). The prosecutor’s conduct did not deny defendant a fair trial.

                           III. SUFFICIENCY OF THE EVIDENCE

        Lastly, defendant argues that the prosecutor failed to present sufficient evidence of his
identity as the perpetrator and, even if he had, there was insufficient evidence that he acted with
premeditation and deliberation. We disagree. When ascertaining whether sufficient evidence
was presented at trial to support a conviction, we must view the evidence in a light most
favorable to the prosecution and determine whether a rational trier of fact could find that the
essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491
Mich 127, 139; 815 NW2d 85 (2012). Circumstantial evidence and reasonable inferences arising
from the evidence can constitute satisfactory proof of the elements of the crime. People v
Brantley, 296 Mich App 546, 550; 823 NW2d 290 (2012). “[A] reviewing court is required to
draw all reasonable inferences and make credibility choices in support of the jury’s verdict.”
People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).

                                          A. IDENTITY

        Identity is an essential element in a criminal prosecution, People v Oliphant, 399 Mich
472, 489; 250 NW2d 443 (1976), and the prosecution must prove the identity of the defendant as
the perpetrator of a charged offense beyond a reasonable doubt. People v Kern, 6 Mich App 406,
409-410; 149 NW2d 216 (1967). Positive identification by a witness or circumstantial evidence
and reasonable inferences arising from it may be sufficient to support a conviction of a crime.
People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000); Nowack, 462 Mich at 400. The
credibility of identification testimony is for the trier of fact to resolve and this Court will not
resolve it anew. Id.

        Two eyewitnesses, who were familiar with defendant, unequivocally identified defendant
as the gunman. Wakefield testified that he and Durham were sitting on a couch, engaged in
conversation, when he saw defendant shoot Durham. Stevens testified that he heard three
gunshots, looked into the living room, and saw Durham lying dead on the couch, and defendant
pointing a pistol toward Durham’s body. These witnesses’ testimony, if believed, was sufficient
to establish defendant’s identity as the shooter. Davis, 241 Mich App at 700. Defendant’s
challenges to the weight and credibility of the witnesses’ identification testimony were matters
for the jury to decide and do not affect the sufficiency of the evidence. People v Scotts, 80 Mich
App 1, 9; 263 NW2d 272 (1977). The same challenges to the identification testimony that
defendant raises on appeal were presented to the jury during trial. This Court will not interfere
with the jury’s role of determining issues of weight and credibility. People v Wolfe, 440 Mich


                                                -5-
508, 514; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Rather, this Court is required
to draw all reasonable inferences and make credibility choices in support of the jury’s verdict.
Nowack, 462 Mich at 400. There was sufficient evidence of defendant’s identity.

                                     B. PREMEDITATION

        First-degree premeditated murder requires proof that the defendant intentionally killed
the victim and that the act of killing was premeditated and deliberate. People v Ortiz, 249 Mich
App 297, 301; 642 NW2d 417 (2002). Premeditation and deliberation require “sufficient time to
allow the defendant to take a second look.” People v Anderson, 209 Mich App 527, 537; 531
NW2d 780 (1995). The following nonexclusive list of factors may be considered to establish
premeditation and deliberation: (1) the previous relationship between the decedent and the
defendant, (2) the defendant’s actions before the killing, (3) the circumstances surrounding the
killing itself, including the weapon used and the location of the wounds inflicted, and (4) the
defendant’s conduct after the homicide. People v Unger, 278 Mich App 210, 229; 749 NW2d
272 (2008); People v Coddington, 188 Mich App 584, 600; 470 NW2d 478 (1991). “[M]inimal
circumstantial evidence will suffice to establish the defendant’s state of mind[.]” People v
Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008).

       The prosecution presented evidence that defendant and Durham discussed defendant’s
debt to Durham, defendant agreed to make payments, and Durham was satisfied with the
payment agreement. During their conversation, defendant was not holding a gun. Durham was
not armed and had not acted aggressively toward defendant. Thereafter, as Durham and
Wakefield sat on the living room couch talking, Wakefield saw defendant come from the kitchen
area and shoot Durham; Durham suffered gunshot wounds in the head and chest. There was
evidence that a “house gun” was kept on the kitchen counter. After shooting Durham, defendant
told Wakefield, “it ain’t nothing you can do for him now. He gone.” Wakefield left the house,
leaving defendant and Durham’s body there. The next day, when Wakefield returned home, the
couch, Durham’s body, and the house gun were gone. Defendant informed Wakefield that
Durham would never be found, explaining, “like driving down the freeway throwing pieces of
puzzle out the window. Never be able to put it back together again.”

        This evidence, viewed in a light most favorable to the prosecution, was sufficient for a
jury to find premeditation and deliberation beyond reasonable doubt. The evidence that
defendant acted after the discussion about money had amicably ended, that Durham was sitting
on the couch engaged in conversation with Wakefield, and that Durham had not acted
aggressively toward defendant allowed the jury to find that defendant was not in imminent
danger and had an opportunity to reflect on his actions before he shot Durham. The time
required between defendant’s conduct of obtaining a weapon and shooting Durham multiple
times also afforded him sufficient time “to take a second look” at his actions. See People v
Tilley, 405 Mich 38, 43-46; 273 NW2d 471 (1979), and People v Lewis, 95 Mich App 513, 515;
291 NW2d 100 (1980). Further, evidence that, after the crime, defendant attempted to dispose of
the body by dismembering and scattering the parts further supports a finding of premeditation
and deliberation. People v Plummer, 229 Mich App 293, 300; 581 NW2d 783 (1998).
Consequently, considering the evidence of the circumstances surrounding the killing, a jury
could rationally infer that defendant acted on a decided course of action rather than an unplanned


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impulse. The evidence was sufficient to sustain defendant’s conviction of first-degree
premeditated murder.

      Affirmed.



                                                    /s/ Amy Ronayne Krause
                                                    /s/ David H. Sawyer
                                                    /s/ Cynthia Diane Stephens




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