                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 4, 2017
                Plaintiff-Appellee,

v                                                                    No. 328577
                                                                     Wayne Circuit Court
MALCOLM ABEL KING,                                                   LC No. 15-002226-01-FC

                Defendant-Appellant.


Before: M. J. KELLY, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Defendant was convicted by a jury of second-degree murder, MCL 750.317, and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The
trial court sentenced him to 20 to 50 years’ imprisonment for second-degree murder, consecutive
to two years for felony-firearm. Defendant’s convictions arose out of the shooting death of
Tiffany Couch. Defendant appeals his convictions by right, raising, both through counsel and in
a Standard 41 brief, allegations of prosecutorial misconduct, ineffective assistance of counsel,
and improper admissions of evidence. We affirm.

        As an initial matter, all of the numerous issues defendant raises on appeal were, for one
reason or another, not properly preserved at trial. Our review of this matter is therefore limited
to plain error affecting defendant’s substantial rights. People v Vandenberg, 307 Mich App 57,
61; 859 NW2d 229 (2014). To demonstrate such an error, a party must show that (1) an error
occurred, (2) the error was clear or obvious, and (3) “the plain error affected [the party’s]
substantial rights,” which “generally requires a showing of prejudice, i.e., that the error affected
the outcome of the lower court proceedings.” People v Carines, 460 Mich 750, 763; 597 NW2d
130 (1999). “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, independent of defendant’s innocence.” People v Ackerman, 257 Mich
App 434, 448-449; 669 NW2d 818 (2003). Reversal is not required if a jury instruction could
have cured the error. Id. at 449.



1
    Supreme Court Administrative Order No. 2004-6.


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       Defendant objects to the admission of evidence of firearms unconnected with the instant
shooting that were recovered from his house, a stipulation that the victim in a pending criminal
sexual conduct (“CSC”) case identified defendant from a surveillance video, and alleged hearsay
testimony from the officer in charge. None of defendant’s evidentiary objections have merit.

        We find that defendant was not prejudiced by the admission of the firearms, because his
trial counsel affirmatively relied on those firearms in arguing that defendant could not have been
the perpetrator because none of the guns were compatible with the bullets used in the charged
crime. Defendant mischaracterizes the evidence of his identification, which did not identify the
nature of the other crime under investigation, and in fact did not even implicate him in any other
crime. Rather, it only established that a search of the Detroit Police Department’s internal
database had revealed that a white Jaguar registered to defendant had been mentioned in a report
for a “totally unrelated investigation,” and that a particular witness would testify that she had
been shown a photograph of defendant and recognized him as someone with whom she was
familiar. Finally, the alleged hearsay was nothing of the sort. An out of court statement is not
hearsay if it is offered for a purpose other than the truth of its contents. People v Mesick (On
Reconsideration), 285 Mich App 535, 540; 775 NW2d 857 (2009). Viewed in context, the
challenged testimony was not offered for its truth, but rather to explain how the police
investigation moved away from the person who found the victim’s body and toward defendant.
In addition, the officer alluded to the source of information—defendant’s employer—but did not
actually state what was said by the other sources.

       In short, there was nothing whatsoever improper about the admission of the challenged
evidence, and some of it is difficult to view as even obviously prejudicing defendant’s case.
Even if objections to the evidence had been preserved, it would merit little discussion.

       Defendant argues that he received ineffective assistance of counsel for stipulating to the
waiver of the CSC victim as a witness and for failing to object to the absence of another witness.
The waiver was an entirely reasonable strategic decision to avoid any possibility that the jury
might learn that defendant had previously sexually assaulted her. In any event, defendant has
completely failed to demonstrate that her presence would have resulted in any outcome-
determinative testimony. The other witness did, in fact, testify, and defense counsel actually
cross-examined her. Defendant’s contention that defense counsel should have objected to that
witness’s absence is therefore frivolous.

        In his Standard 4 brief, defendant further argues that defense counsel was ineffective for
failing to file a variety of motions to suppress, failing to call an expert, and made an
impermissibly weak closing argument. Defendant specifically argues that evidence of cell phone
tower records, evidence collected at the scene of the crime, and evidence collected from his car
should have been suppressed. However, he fails to establish that the police lacked reasonable
suspicion to search his car after finding a small amount of marijuana or that waiting for a K9 unit
to arrive was a constitutionally unreasonable delay. Defendant’s self-serving and unsupported
claim that a cellmate’s expert found an unspecified discrepancy with the cell tower data is
insufficient to establish that defense counsel failed to investigate or that an expert opinion would
have been of any benefit. At most, defendant raises concerns that affect the weight of the
evidence, which defense counsel thoroughly explored at trial, including cross-examining a police
officer regarding typographical errors and mislabeled evidence. Because the evidence was not

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inadmissible, defense counsel cannot be ineffective for failing to advance a meritless argument.
People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004). Rather, defense counsel
appears to have made sound strategic use of the evidence.

        Similarly, it appears that defendant believes trial counsel should have argued to the jury
that the prior search was illegal and that the bloodspots recovered during the subsequent search
should have been excluded. Questions of admissibility are for the trial court, not the jury; in any
event, defendant has failed to establish that the search was, in fact, illegal. Trial counsel’s
strategy of arguing that the real perpetrator was the person who found the body, the father of the
victim’s oldest child and against whom the victim had recently commenced a claim for child
support; and arguing that in contrast defendant was a good person with a job, who cared for his
father and had only ever been arrested for failure to show proof of insurance; was entirely
reasonable. Moreover, in light of the overwhelming evidence against defendant, he has failed to
establish that, but for defense counsel’s closing argument, the result of the proceeding would
have been different.

        Finally, defendant argues, both through counsel and in his Standard 4 brief, that the
prosecutor engaged in a variety of misconduct. We deem waived defendant’s arguments
concerning a statement made by the person who found the victim’s body, because despite a
request from this Court, defendant has failed to provide us with a copy thereof. Reed v Reed,
265 Mich App 131, 160; 693 NW2d 825 (2005), citing MCR 7.210(B); see also Petraszewsky v
Keeth, 201 Mich App 535, 540; 506 NW2d 890 (1993). Defendant’s contention that the
prosecutor impermissibly bolstered that person’s testimony is in part a complete
mischaracterization of what occurred: the prosecutor never asked the police to comment on that
person’s credibility, but rather about how the investigation progressed after interviewing that
person and confirming that he had been at work when the shooting occurred. In any event, the
prosecutor’s questions could also be considered reasonably responsive to defense counsel’s cross
examination regarding the poor relationship between that person and the victim, whether he
benefitted from her death, and his whereabouts at the time of the shooting. See People v Dobek,
274 Mich App 58, 64; 732 NW2d 546 (2007).

        Similarly, defendant argues that the prosecutor impermissibly relied on hearsay testimony
from one of the detectives that a witness reported hearing gunshots at 4:00 p.m. Again, this
mischaracterizes the records. Defense counsel elicited that particular testimony and relied on it
to argue that it was impossible for defendant to commit the murder at 4:00 p.m. and appear on
surveillance video at a gas station by 4:06 p.m. At the end of his argument, defense counsel
invited the prosecutor to argue in rebuttal that the crime did not actually occur at 4:00 p.m. In
rebuttal, the prosecutor reasserted that the exact time of the shooting was unknown, but argued
that even assuming that defense counsel’s argument regarding the time of the crime was correct,
defendant still had time to commit the crime. The prosecutor clearly not only did not
impermissibly rely on hearsay testimony, but rather properly responded to defense counsel’s
argument. Furthermore, although the witness who reported hearing a shot fired at 4:00 p.m. did
not appear at trial because she had to go to the hospital, which is good cause under MCL
767.40a(4), her statement was not offered for its truth in any event.

       Defendant also argues that the prosecutor impermissibly shifted the burden of proof
during his closing argument. A prosecutor generally may not comment on a defendant’s

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decision not to testify and may not imply that the defendant is obligated to prove anything.
People v Fyda, 288 Mich App 446, 462-464; 793 NW2d 712 (2010); People v Abraham, 256
Mich App 265, 273; 662 NW2d 836 (2003). When viewed in context, however, the prosecutor
was not referring to defendant’s failure to testify about a valid explanation for the shell casing in
his house and the blood in his car. People v Hicks, 259 Mich App 518, 532-534; 675 NW2d 599
(2003); cf. People v Holbrook, 154 Mich App 508, 512-513; 397 NW2d 832 (1986). Rather,
referring to the circumstantial evidence in closing argument, the prosecutor argued that there was
no reasonable inference or explanation other than that defendant was the perpetrator. The
prosecutor was commenting on the strength of the evidence presented, not defendant’s failure to
testify. Then, in response to defense counsel’s closing argument, the prosecutor argued that
although defense counsel presented defenses to certain facts, there was no reasonable defense or
explanation for the shell casing and blood. On this record, the prosecutor’s arguments were not
improper.

        Defendant argues that the prosecutor’s rebuttal argument contained an impermissible
attack on defense counsel, arguing that circumstantial evidence “cannot lie” and noting that “ it’s
a common defense tactic to ask you - - to make you ask a bunch of questions that you don’t have
the answer.” It is improper to argue to the jury that defense counsel is intentionally attempting to
mislead the jury. People v Dalessandro, 165 Mich App 569, 579-580; 419 NW2d 609 (1988).
However, it is not improper to argue to the jury that certain elements of defense counsel’s
arguments are irrelevant distractions, particularly where they are “made in response to defense
counsel’s suggestion that the prosecutor failed to recognize evidence that was allegedly
problematic to the prosecution’s theory” or where “any prejudicial effect could have been cured
by a timely instruction.” Dobek, 274 Mich App at 67-68. We think the prosecutor’s remarks
here were not unduly intemperate, and they were reasonable arguments that defense counsel’s
questions were attempts to distract the jury from its sole task to decide whether the evidence
supported the elements of the charged offenses. Additionally, any prejudicial effect of the
prosecutor’s argument could have been cured by a timely instruction or the trial court’s warning
that the attorneys’ arguments were not evidence.

        Finally, defendant argues that the prosecutor improperly vouched for the credibility of the
police witnesses. A prosecutor “cannot vouch for the credibility of his witnesses to the effect
that he has some special knowledge concerning a witness’[s] truthfulness.” People v Bahoda,
448 Mich 261, 276; 531 NW2d 659 (1995). However, “a prosecutor may comment on his or her
own witnesses’ credibility, especially when credibility is at issue.” People v Bennett, 290 Mich
App 465, 478; 802 NW2d 627 (2010). “[P]rosecutorial arguments regarding credibility are not
improper when based on the evidence, even if couched in terms of belief or disbelief.” People v
Unger, 278 Mich App 210, 240; 749 NW2d 272 (2008).

        Viewed in context, the prosecutor’s remarks were a proper response to defense counsel’s
attack on the credibility of the police. Dobek, 274 Mich App at 64. Although the prosecutor
argued that the jury could see that there was no reward, such as fame or money, for making a
case against defendant, the prosecutor did not imply that he had any special knowledge regarding
the truthfulness of the police testimony. The prosecutor instead argued that the evidence, alone,
would prove that the police officers were not untruthful and that defendant was the perpetrator.
Because the prosecutor’s argument was tied to the evidence—including the lack of evidence
regarding the detectives’ motivation to be untruthful—his statements were a permissible

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response to defendant’s attack on the officers’ credibility. Again, defendant has not established
plain error affecting his substantial rights regarding the prosecutor’s statements.

       Affirmed.

                                                           /s/ Michael J. Kelly
                                                           /s/ William B. Murphy
                                                           /s/ Amy Ronayne Krause




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