                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 19, 2016
               Plaintiff-Appellee,

v                                                                   No. 326511; 329812
                                                                    Isabella Circuit Court
BILLY WAYNE WELCH, JR.,                                             LC No. 2014-001558-FC

               Defendant-Appellant.


Before: OWENS, P.J., and BORRELLO and O’BRIEN, JJ.

PER CURIAM.

        Defendant, Billy Wayne Welch, Jr., was convicted by a jury of assault with intent to rob
while armed, MCL 750.89, conspiracy to commit assault with intent rob while armed, MCL
750.157a; MCL 750.89, and aggravated assault, MCL 750.81a, and was sentenced as a fourth-
offense habitual offender, MCL 769.12, to 35 to 60 years’ imprisonment for the assault-with-
intent and conspiracy convictions and to 205 days’ imprisonment for the aggravated-assault
conviction. We affirm.1

         Defendant’s convictions arise out of the robbery of a taxi driver that was committed by
defendant and several other individuals. While robbing the driver, defendant and one of the
other individuals, Matthew Epps, pointed imitation handguns at the driver’s head and threatened
his life. Upon exiting the taxi after the robbery, defendant struck the driver in the head with the
handgun. Three of the individuals involved, Epps, Thad Brisboy, and Jennifer Baugher, testified
against defendant as required by their plea agreements. Defendant was subsequently convicted
and sentenced as described above. On appeal, defendant first argues that he is entitled to a new
trial or a remand for an evidentiary hearing because the prosecutor coerced Epps and Brisboy to
testify falsely against him. Second, he argues that he is entitled to a new trial because the
prosecutor argued facts not in evidence and impermissibly vouched for the prosecution’s



1
  Defendant appealed as of right from both his March 6, 2015 judgment of sentence and his
October 6, 2015 amended judgment of sentence. This Court consolidated those appeals. People
v Billy Wayne Welch, Jr, unpublished order of the Court of Appeals, issued November 18, 2015
(Docket Nos. 326511 and 329812).


                                                -1-
witnesses during his rebuttal to defense counsel’s closing argument. We disagree with both
arguments.

        As stated above, defendant’s first argument on appeal is that the prosecutor coerced Epps
and Brisboy to testify falsely against defendant. Specifically, defendant claims that the
prosecutor threatened to rescind their plea agreements if they did not falsely testify that they
“heard [defendant] say during the robbery, ‘Well, I guess this it, you seen our faces, and we are
the 1% (percenters).’ ”2 To support this argument, a document entitled “AFFIDAVIT OF
MATTHEW DAVID EPPS” is included with defendant’s brief on appeal. According to that
document, which is not an affidavit,3 Epps decided to disclose “that the prosecutor instructed
[him] to lie regarding certain aspects of the case” to defendant after being sentenced under the
terms of the plea agreement. Consequently, defendant argues, this matter should be remanded
for an evidentiary hearing to determine whether the prosecutor did, in fact, use false evidence to
obtain his conviction.

        A prosecutor is prohibited from using false evidence to obtain a conviction. People v
Smith, 498 Mich 466, 475-476; 870 NW2d 299 (2015). Likewise, a prosecutor is
constitutionally obligated to report when a prosecution witness lies under oath. People v
Herndon, 246 Mich App 371, 417; 633 NW2d 376 (2001). Even if a prosecutor does not solicit
false testimony, it is inconsistent with due process for the prosecutor not to correct the false
testimony from the prosecution’s own witnesses. People v Wiese, 425 Mich 448, 453-454; 389
NW2d 866 (1986). Nevertheless, a prosecutor’s failure to correct false testimony requires
reversal only when there is a reasonable likelihood that the false testimony could have affected
the jury’s judgment. People v Canter, 197 Mich App 550, 568; 496 NW2d 336 (1992). To
determine whether reversal is warranted, i.e., whether the failure to correct false testimony
deprived defendant of due process, this Court looks to the effect of the prosecutor’s failure to
correct the false testimony. Smith, 498 Mich at 476; see also Smith v Phillips, 455 US 209, 220,
n 10; 102 S Ct 940; 71 L Ed 2d 78 (1982).

        Applying those rules to this case, it is important to first make clear that we are assuming
for purposes of this appeal that, in fact, the prosecutor failed to correct (and apparently coerced)
false testimony, which is a claim made for the first time on appeal that is wholly unsupported by
the record.4 Nevertheless, assuming it to be true, we conclude that defendant is not entitled to a


2
  According to a police officer who testified at trial, “one percenters” “usually refers to a
motorcycle gang or the outlaw motorcycle gangs, because they are considered one percent of all
gangs, of all motorcycle riders.”
3
  The document is merely a typed statement signed by an individual who purports to be Epps. It
is not, for example, notarized (or even witnessed) by anyone.
4
  Nothing in the record provides factual support for this argument. The only support for
defendant’s claim is the self-serving document included with his brief on appeal that is described
above. We think it is important to keep in mind that Epps, defendant’s co-defendant and friend,
admitted to lying on the witness stand to defendant while in prison together only after he had
been sentenced under a plea agreement that required his truthful testimony. At a minimum, there


                                                -2-
new trial. Defendant was convicted of assault within intent to commit armed robbery5 and
conspiracy to commit the same6 as well as aggravated assault7. As reflected by the elements of
those crimes, having “seen [their] faces” and membership in the “1% (percenters)” is not
required. Indeed, even on appeal, defendant never challenges Epps’s or Brisboy’s testimony that
was necessary to prove the crimes at issue. Epps testified that defendant mentioned that the
individuals could rob the taxi driver, handed Epps the imitation handgun to do so, pointed the
gun at the driver, and did all of the talking. Brisboy confirmed Epps’s account of these events.
The taxi driver testified similarly, and he expressly stated that the individual whom the
codefendants identified as defendant was the individual who struck him in the head with the
imitation handgun while exiting the taxi. Epps, Brisboy, and Baugher either observed defendant
strike the driver or recalled defendant admitting to having done so after the fact. It is this
evidence, not testimony regarding membership in a motorcycle gang, that supported defendant’s
convictions, and defendant does not challenge it on appeal. In fact, the prosecutor never
mentioned the allegedly false testimony during his closing or rebuttal arguments. Because this
testimony did not relate to elements of the charged offenses, we conclude that there is no
reasonable likelihood that it would have impacted the judgment of the jury. Canter, 197 Mich
App at 568. Thus, a new trial is not required.

         On appeal, defendant also argues that he was deprived of his constitutional right to a fair
trial in light of a comment made by the prosecutor in his rebuttal to defense counsel’s closing
argument. Specifically, defendant takes issue with the following comment made by the
prosecutor in response to defense counsel’s closing argument: “Ladies and gentlemen, never,
never, never did I offer this Defendant Welch any sort of plea deals to testify against the co-
defendants.” Relatedly, he argues that the trial court abused its discretion in denying his motion
for a mistrial in light of those remarks. Thus, defendant claims, he is entitled to a new trial.

       “[A] claim of prosecutorial misconduct is a constitutional issue reviewed de novo.”
People v Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003). We review prosecutorial-
misconduct claims “on a case-by-case basis, in the context of the issues raised at trial, to
determine whether a defendant was denied a fair and impartial trial.” People v Fyda, 288 Mich
are concerns over the credibility of this document. Further, as the prosecution correctly
recognizes, the document itself is beyond the record on appeal. Canter, 197 Mich App at 557
(“Because this Court’s review is limited to the lower court record, those documents will not be
considered.”). Thus, we should not even consider it.
5
  In order to be convicted of assault with intent to rob while armed, a defendant must (1) assault
the victim with force and violence, (2) do so with an intent to rob or steal, and (3) be armed.
MCL 750.89.
6
  In order to be convicted of conspiracy to commit assault with intent to rob while armed, a
defendant must conspire with at least one more person to commit an offense prohibited by law or
commit a legal act in an illegal manner, which, in this case, was assault with intent to rob while
armed. MCL 750.157a.
7
 In order to be convicted of aggravated assault, a defendant must assault another individual
without a weapon in a manner that inflicts serious or aggravated injury upon that individual
without the intent to commit murder or to inflict great bodily harm. MCL 750.81a(1).


                                                -3-
App 446, 460; 793 NW2d 712 (2010). While prosecutors are generally free to argue the
evidence and all reasonable inferences from the evidence, they are not permitted to “make a
statement of fact to the jury that is not supported by evidence presented at trial and may not
argue the effect of testimony that was not entered into evidence.” People v Unger, 278 Mich
App 210, 241; 749 NW2d 272 (2008); see also People v Fisher, 193 Mich App 284, 291; 483
NW2d 452 (1992). That said, defendants are “entitled to a fair trial, not a perfect one.”
Abraham, 256 Mich App at 279.

       Applying those rules to this case, it is apparent that the prosecutor’s remark at issue was
improper. The fact that the prosecution did not offer defendant a plea deal to testify against his
codefendants was not reflective of any evidence that was admitted during trial. However, we
cannot ignore the context in which this remark was made “because an otherwise improper
remark may not rise to an error requiring reversal when the prosecutor is responding to the
defense counsel’s argument.” People v Kennebrew, 220 Mich App 601, 608; 560 NW2d 354
(1996). And that is precisely what happened in this case.

       During her closing argument, defense counsel argued, in pertinent part, as follows:

              And so what does [defendant] do? [Defendant] doesn’t point the finger at
       anybody else. He doesn’t point the finger at anybody else. And in his jail call he
       explains why; because the Indian guys have been good to him, they had stuck by
       him, and he’s not going to roll, he’s not going to turn on them.

               They tried to get him. They tried to get him to testify against somebody
       else. The DA, he says, came at him, but he’s not going to do it. It’s not right. He
       says he doesn’t want to go to prison for something he didn’t do, but he’s not
       going to roll. It’s not right because he’s got these friends and he thinks his friends
       are sticking by him, so that’s . . . why he lies, essentially. [Emphasis added.]

The prosecutor responded to defense counsel’s claim that the prosecution “tried to get him to
testify against somebody else,” and he did so as follows:

              The plea deals. [Defense counsel] suggests that the prosecutor, who is
       myself handling the case, approached [defendant] with a plea deal because
       [defendant] referred to it in a jail call where he calls this person, this female
       named Chris in New York. And that the DA, the prosecutor is trying to get me to
       turn on these others and I won’t do it. So she’s taking liberty with that statement.
       Okay.

              Ladies and gentlemen, never, never, never did I offer this Defendant . . .
       any sort of plea deals to testify against the co-defendants.

As stated above, this remark was improper. However, it was directly in response to defense
counsel’s argument that the prosecutor did, in fact, “tr[y] to get him to testify against somebody
else.” As indicated above, the context of a prosecutor’s improper remark is crucial to the
determination of whether reversal is required. Kennebrew, 220 Mich App at 608; see also
People v Rodriguez, 251 Mich App 10, 30; 650 NW2d 96 (2002) (“The propriety of a


                                                -4-
prosecutor’s remarks depends on all the facts of the case.”). In light of its context, the improper
remark was harmless. Thus, a new trial is not required.

        Furthermore, even if we assume that the improper remark at issue was not made in
response to defense counsel’s closing argument, defense counsel objected immediately after the
statement was made, and the trial court issued an immediate instruction. While it appears that
the beginning of the instruction was not transcribed into the record, the remainder of the
instruction appears as follows:

               . . . jury to strike that last comment because it was not part of the
       evidentiary record. We did not hear any testimony in trial about that and you
       have to base your verdict on the evidence admitted, not the statements of the
       lawyers. It has to be on the evidence.

During its final instructions to the jury, the trial court again instructed the jury that “[t]he
lawyers’ statements and arguments are not evidence” and that its verdict must be “based only on
the evidence and [the trial court’s] instructions on the law.” “Jurors are presumed to follow their
instructions, and instructions are presumed to cure most errors.” Abraham, 256 Mich App at
279. While improper, the prosecutor’s remark simply did not have “a prejudicial effect so severe
that it was not cured by the instruction appropriately issued.” Id. Thus, a new trial is not
required.

        As indicated above, defendant relatedly argues that the trial court abused its discretion in
denying his motion for a mistrial after the remark discussed above was made. A motion for a
mistrial should be granted only when an error is “so egregious that its prejudicial effect can be
removed in no other way.” People v Gonzales, 193 Mich App 263, 266; 483 NW2d 458 (1992).
In light of our conclusion above, we discern no error in the trial court’s decision in this respect.
As the trial court correctly indicated in denying defendant’s motion, the prosecutor’s improper
remark was made in direct response to defense counsel’s assertion that the prosecution “tried to
get him to testify against somebody else.” Moreover, the prejudicial effect of the prosecutor’s
remark could have been, and was, removed in a way other than by declaring a mistrial—the trial
court expressly and immediately instructed the jury to not consider the remark. Because the
prejudicial effect of the improper remark could have been, and was, removed in another way, a
mistrial was not required. Id. For the same reasons, the trial court’s decision to deny the motion
did not constitute an abuse of discretion. Thus, a new trial is not required.

       Affirmed.




                                                             /s/ Donald S. Owens
                                                             /s/ Stephen L. Borrello
                                                             /s/ Colleen A. O’Brien




                                                -5-
