            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  September 19, 2019
              Plaintiff-Appellee,

v                                                                 No. 343994
                                                                  Wayne Circuit Court
JARVIS LEE GLENN,                                                 LC No. 14-004400-02-FC

              Defendant-Appellant.


Before: O’BRIEN, P.J., and BECKERING and LETICA, JJ.

PER CURIAM.

       Defendant, Jarvis Lee Glenn, appeals as of right his jury trial conviction of armed
robbery, MCL 750.529.1 We affirm.

                                I. FACTUAL BACKGROUND

        This case arises from the robbery and murder of Curtis Robinson. Robinson died by
gunshot wounds. Glenn and his codefendant, Jessie Lewis, were tried jointly on charges related
to Robinson’s robbery and shooting. The shooting took place around 5:46 p.m. on April 7, 2014,
in the general vicinity of 13515 Maine Street in Detroit, Michigan. Norma Lyte, Lewis’s aunt,
lived at that address, and Lewis’s sisters—Tawana Lyte and Star Lyte—lived across the street.

       Around 3:00 p.m. on April 7, 2014, Shavonte Jackson, Robinson’s niece, saw Robinson
at her house with a man she later identified as Glenn. At 4:30 p.m., Kathleen Urbaniak, the
mother of Robinson’s son, saw Robinson at a nearby McDonald’s with a man she later identified
as Glenn. Shortly before 5:46 p.m., Norma saw codefendant Lewis walking up the sidewalk
toward her house talking to someone on his cell phone. A few minutes later, Norma heard a loud


1
  The jury was unable to reach a verdict on Glenn’s charges for felony murder, MCL
750.316(1)(b), and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b.



                                              -1-
crash and gunshots outside her house. After the gunshots, Norma saw Lewis running down the
street. In an April 23, 2014 sworn police statement, Star told the police that she saw Glenn
standing in the street on the passenger side of Robinson’s car moments after hearing the
gunshots, and that Glenn quickly took off running.

        At trial, Star claimed that she never saw, nor did she tell police that she saw, Glenn on
April 7, 2014. Star claimed that she lied in her April 23 statement because a detective threatened
to arrest her and take her children away unless she gave the police information about the
shooting.

        When the police arrived at the scene of the shooting, they found Robinson’s body
partially inside his car. Robinson had sustained two fatal gunshot wounds. Multiple witnesses
told police officers that they heard a car crash and multiple gunshots. Two cell phones—a black
Huawei cell phone and a silver LG cell phone—were discovered lying on the ground near
Robinson’s car. The police recovered a third cell phone—a black LG cell phone—inside
Robinson’s car. Detroit Police Officer Jeb Rutledge quickly determined that the black LG cell
phone belonged to Robinson. After speaking with Star, Norma, and Glenn’s mother, Penny
Glenn, the police determined that the black Huawei cell phone belonged to Lewis, and the silver
LG cell phone belonged to Glenn.

        Following Glenn’s April 23, 2014 arrest, he was interviewed by Officer Rutledge. Glenn
admitted that he knew Robinson and Lewis, and was with Robinson on April 7, 2014. Glenn
also told Officer Rutledge he last spoke with Lewis on April 7, 2014. Glenn could not explain
why Star would say that she saw him standing near Robinson’s car moments after the shooting.

        Cellular telephone records from Glenn’s cell phone showed 24 references to “Jarvo,”
which was Glenn’s nickname. Cellular telephone records from Lewis’s cell phone showed seven
references to Lewis’s nicknames, “Mook” and “Dymook.” The records showed references to
Glenn’s and Lewis’s nicknames on the day of the shooting, suggesting that Glenn and Lewis
carried their cell phones with them on April 7, 2014. The records also revealed that between
5:40 p.m. and 5:46 p.m.—the time when the first 911 call was made—the cell phones belonging
to Glenn, Lewis, and Robinson were interacting with the same cellular site, showing that the
three men were in the same general location at the same time. At 5:40 p.m., Glenn sent a text
message to Lewis, telling Lewis to “take both of his phone[s]. I want onr [sic].” At 5:43 p.m.,
Glenn sent another text message to Lewis stating that, “it’s on, go.” After the 911 call at 5:46
p.m., Lewis’s phone received several calls that went to voicemail, suggesting that Lewis had his
phone on him at the time of the shooting and dropped it near Robinson’s car after the shooting.

        Glenn did not testify at trial, but Lewis did. Lewis admitted that he owned the black
Huawei cell phone and that he knew Glenn, but denied knowing Robinson. According to Lewis,
his text message conversation was not about a plan to rob Robinson, but to rob another
individual—Lewis planned to steal two cell phones and a computer from a nearby prostitution
house. Lewis also claimed that he was texting Glenn’s brother, not Glenn, and that Glenn’s
brother was using Glenn’s cell phone to talk to Lewis. Lewis also claimed that his cellular
telephone records were incorrect with respect to the timing because he was texting Glenn’s
brother an hour before the shooting occurred. Lewis claimed that he was walking back to his
aunt’s house and arguing on the phone with his girlfriend when he heard gunshots and then a car

                                               -2-
crash. Lewis dropped to the ground quickly before running away from the area. Lewis claimed
that when he fell to the ground, he dropped his cell phone.

                             II. PROSECUTORIAL MISCONDUCT

       Glenn first argues that he is entitled to a new trial because he was denied a fair trial when
the prosecutor repeatedly engaged in prosecutorial misconduct.2 We disagree.

        Because Glenn failed to preserve this issue by objecting to the contested conduct, our
review is for plain error affecting substantial rights. People v Bennett, 290 Mich App 465, 475;
802 NW2d 627 (2010). Under the plain-error standard, the defendant must satisfy three
requirements: “1) error must have occurred, 2) the error was plain, i.e., clear or obvious, and 3)
the plain error affected substantial rights.” People v Carines, 460 Mich 750, 765; 597 NW2d
130 (1999). “The third requirement generally requires a showing of prejudice, i.e., that the error
affected the outcome of the lower court proceeding.” Id.

        Because a prosecutor’s role is to “seek justice” rather than to merely convict, “the test for
prosecutorial misconduct is whether a defendant was denied a fair and impartial trial.” People v
Dobek, 274 Mich App 58, 64; 732 NW2d 546 (2007). Claims of prosecutorial misconduct are
evaluated on a case-by-case basis, and this Court must consider the prosecution’s comments in
context. Bennett, 290 Mich App at 475. “The propriety of a prosecutor’s remarks depends on all
the facts of the case.” Dobek, 274 Mich App at 64 (quotation marks and citation omitted). A
prosecutor’s remarks are evaluated in light of the defendant’s arguments and their relationship to
the evidence admitted at trial. People v Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008).

       Glenn first contends that the prosecutor made two remarks during her opening statement
that constitute prosecutorial misconduct. According to Glenn, the first instance occurred when
the prosecutor stated as follows:

       You see this crime happened in a location where the defendants are well known.
       Family lives there. And this by itself isn’t necessarily unusual because defendants
       tend to go to places where they think they can get away with the crime. Or they
       think they can control the environment or intimidate the witnesses. Or at the very
       least where people aren’t going to tell on them.

Glenn contends that this amounted to “unsworn testimony, and [was] not something the
prosecutor reasonably anticipated showing at trial.”

       Stating facts that the prosecutor intends to prove at trial is permissible during opening
statements. People v Meissner, 294 Mich App 438, 456; 812 NW2d 37 (2011). The prosecutor


2
  This Court recently explained in People v Cooper, 309 Mich App 74, 87-88; 867 NW2d 452
(2015), that a fairer label for most claims of prosecutorial misconduct would be “ ‘prosecutorial
error,’ ” while only the most extreme cases rise to the level of “ ‘prosecutorial misconduct.’ ”
However, we will use the phrase “prosecutorial misconduct” because it has become a term of art.


                                                -3-
intended to prove that Glenn and Lewis planned to rob and murder Robinson on Maine Street
because they could limit their exposure to individuals less likely to cooperate with the police.
The prosecutor called several of Lewis’s family members as witnesses in an attempt to prove that
Glenn and Lewis chose to commit their crimes on Maine Street for that reason. And while the
prosecutor could not introduce evidence proving that all criminal defendants choose certain
locations to commit their crimes because they believe they can intimidate the witnesses and
control the environment, prosecutors are not barred from encouraging jurors to draw
common-sense inferences from the facts. People v Ringsted, 90 Mich 371, 374; 51 NW 519
(1892) (explaining that it was permissible for a prosecutor to encourage jurors to use “common
sense” because “[j]urors are not to be debarred from using common sense in drawing inferences
from testimony, and, if common sense is used, the inferences will generally be legitimate and
legal ones”). Indeed, prosecutors are afforded wide latitude in doing so. See Dobek, 274 Mich
App at 66. The prosecutor’s statement that perpetrators of a crime want to “get away with the
crime” is common sense. The notion that Glenn attempted to conceal his involvement in the
crime by choosing to commit the crime at a location where the witnesses would be familiar and
therefore less likely to cooperate with police was a reasonable inference, given the facts.
Accordingly, the prosecutor’s remarks during her opening statement about a defendant’s
tendency to commit crimes in certain locations were not improper and did not constitute
prosecutorial misconduct.

         Glenn next challenges the prosecutor’s following remark made during her opening:

         In addition to that, [Officer Rutledge] did talk to Mr. Jarvis Glenn. Mr. Jarvis
         Glenn confirmed, yeah, I know [Robinson]. Yeah, I saw him that day. Yeah, I
         was even with him at a time. But when it gets time to answer the hard questions,
         he doesn’t want to do that. You’re going to hear about that.

Glenn argues that it was improper for the prosecutor to comment on his refusal to answer some
of Officer Rutledge’s questions.

        Generally, prosecutors cannot comment on a defendant’s constitutional right to remain
silent in the face of questioning by a police officer after the defendant has been advised of his
Miranda3 rights and exercises his right to remain silent. People v McGhee, 268 Mich App 600,
634; 709 NW2d 595 (2005). Yet if a defendant waives his right to remain silent and there is no
basis to conclude that the defendant’s unresponsiveness to questions is attributable to the
invocation of that right or reliance on the Miranda warnings, then such evidence of the
defendant’s silence is not improper and the prosecutor may bring it to the jury’s attention. See
People v McReavy, 436 Mich 197, 203; 462 NW2d 1 (1990).

       During her opening, the prosecutor commented that when Officer Rutledge questioned
Glenn for this case, Glenn remained silent in response to some questions, but not others. Officer
Rutledge testified that this occurred after he advised Glenn of his Miranda rights and Glenn
waived those rights.


3
    Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                               -4-
       As our Supreme Court explained in McReavy, 436 Mich at 218-219:

       In situations where a defendant voluntarily waives his Fifth Amendment right to
       be silent, makes some statements, and then fails to respond to other questions, the
       focus of the inquiry is whether the defendant is now manifesting either a total or
       selective revocation of his earlier waiver of Fifth Amendment rights and whether
       that revocation is induced by the implicit assurances contained in the Miranda
       warnings. If it is concluded that a defendant’s lack of response constituted
       invocation of the right to remain silent which was induced by the government, the
       failure to respond would again present the “insoluble” ambiguity that Doyle[v
       Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976)] forbids.23

       __________________________________________________________________
       23
          If a defendant answered several questions and then invoked his right to remain
       silent, Doyle, 426 US at 618-619, would prevent the prosecutor from commenting
       on this silence. However, in the present case the defendant did not invoke the
       right to remain silent until the morning following the interview.

       __________________________________________________________________

       [Footnote omitted.]

A “[d]efendant cannot have it both ways—he cannot choose to speak and at the same time retain
his right to remain silent.” People v Davis, 191 Mich App 29, 36; 477 NW2d 438 (1991).

        Glenn does not contend that he ever asserted his right to remain silent after Officer
Rutledge advised him of his Miranda rights, and there is nothing in the record to suggest
otherwise. That is, nothing in the record suggests (and Glenn does not contend) that his
unresponsiveness to some of Officer Rutledge’s questions was attributable to the invocation of
his right to remain silent or reliance on the Miranda warnings. “When a defendant speaks after
receiving Miranda warnings, a momentary pause or even a failure to answer a question will not
be construed as an affirmative invocation by the defendant of the right to remain silent.”
McReavy, 436 Mich at 222. Thus, the prosecutor did not commit misconduct when she
commented on Glenn’s refusal to answer some of Officer Rutledge’s questions, but not others.

       Glenn next argues that the prosecutor’s following exchange with Detroit Police Officer
Gentry Shelby constituted prosecutorial misconduct:

               Q. And when you said you had a photograph of Jarvis Glenn that you
       were looking at, do you know, was it a Secretary of State photo or what type of
       photo it was?

              A. Wayne County mug shot photo.

Glenn’s argument on this issue is a single sentence. Glenn does not explain how or why it was
improper for the prosecutor to elicit from Officer Shelby that Glenn’s booking photograph was
used to identify him. “Such cursory treatment constitutes abandonment of the issue.” People v

                                               -5-
Matuszak, 263 Mich App 42, 59; 687 NW2d 342 (2004). Even addressing the argument,
Glenn’s issue with the booking photograph is presumably that it suggested to the jury that he had
a criminal history. Officer Gentry said only that he used Glenn’s booking photograph to identify
him, without further elaboration. Officer Gentry’s comment was brief and isolated. It occurred
in the context of Office Gentry’s explanation as to how he was able to identify Glenn and arrest
him. Neither the prosecutor nor Officer Gentry focused any further on the fact that Glenn’s
booking photograph was used to identify Glenn. Accordingly, the prosecutor’s question did not
amount to prosecutorial misconduct.4

       Glenn’s final allegation of prosecutorial misconduct concerns the following statement
from the prosecutor’s closing argument:

          Ladies and gentlemen, the city of Detroit is a very busy place. The homicide
          department is a very busy place. They don’t have time to say hmmm, Jessie
          Lewis doesn’t seem like a nice guy, let’s pin a case on him. They don’t have time
          to say hmmm, Jarvis Lewis-or Jarvis Glenn, not maybe a good guy either, let’s
          pin a case on him. That’s not what they do. They go to a scene, they evaluate
          what they have and then they start to investigate.[5]

As with his last argument, Glenn’s argument on this issue is a single sentence and is arguably
abandoned. See id. Even addressing the argument, it appears that Glenn contends that the
prosecutor’s statement was an improper bolstering of the police officers’ credibility. We
disagree.

        During Lewis’s testimony, he alleged that the police were attempting to “wrongfully
convict” him. During closing arguments, Lewis’s trial counsel alleged that the police fabricated
a connection between Lewis’s cell phone and Robinson’s death because they wanted to quickly
solve the case and move on. In response, the prosecution made the above statement disclaiming
any theory that the police manufactured evidence or a connection between Lewis and Robinson’s
death. Clearly, the prosecutor’s comments were made in response to a defendant’s argument,
and it is well-established that a prosecutor may fairly respond to issues raised by a defendant.
People v Hicks, 259 Mich App 518, 534; 675 NW2d 599 (2003). The prosecutor’s proportionate
and direct response to an issue raised by Lewis did not amount to prosecutorial misconduct.

                          III. INEFFECTIVE ASSISTANCE OF COUNSEL




4
  We note also that even if this exchange amounted to prosecutorial misconduct, the single,
isolated comment was not so inflammatory that Glenn was prejudiced. See People v Ericksen,
288 Mich App 192, 199; 793 NW2d 120 (2010) (concluding that, although the prosecutor’s
statement during closing argument amounted to misconduct, the defendant was not prejudiced
because the statement was not “so inflammatory as to have prejudiced [the] defendant.”).
5
    Glenn incorrectly states that the prosecutor said that “cops don’t manufacture this.”


                                                  -6-
         Glenn argues that he was denied the effective assistance of counsel because trial counsel
failed to object to several instances of prosecutorial misconduct as well as improper remarks by
the trial court. We disagree.

       Because Glenn failed to file a motion in the trial court for a new trial or an evidentiary
hearing, his ineffective assistance claim is unpreserved. See People v Sabin, 242 Mich App 656,
658; 620 NW2d 19 (2000). This Court reviews unpreserved claims of ineffective assistance
based on the facts contained in the existing record. People v Jordan, 275 Mich App 659, 667;
739 NW2d 706 (2007).

        Whether effective assistance of counsel has been denied is a mixed question of fact and
constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). This Court
reviews questions of constitutional law de novo, and factual findings, if any, are reviewed for
clear error. Jordan, 275 Mich App at 667.

        To demonstrate ineffective assistance of counsel, “a defendant must show that (1)
counsel’s performance fell below an objective standard of reasonableness and (2) but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have
been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). Effective
assistance is “strongly presumed,” People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012),
and the defendant bears the heavy burden of proving otherwise, People v Dixon, 263 Mich App
393, 396; 688 NW2d 308 (2004)

        Glenn argues that trial counsel was ineffective for not objecting to the four alleged
instances of prosecutorial misconduct discussed above. Because we concluded that none of the
alleged instances amounted to prosecutorial misconduct, trial counsel was not ineffective for
failing to object. See People v Knapp, 244 Mich App 361, 386; 624 NW2d 227 (2001)
(explaining that trial counsel is not required to make frivolous or meritless objections).

        Moreover, defendant has not explained how trial counsel’s failure to raise an objection to
any of the alleged instances of prosecutorial misconduct, even if objectively unreasonable, could
have resulted in a different outcome. The prosecution presented substantial evidence connecting
Glenn to the armed robbery of Robinson. Urbaniak and Jackson both saw Glenn with Robinson
a few hours before the robbery and shooting took place. Star told the police that she saw Glenn
standing outside of Robinson’s car moments after the shooting. The police discovered Glenn’s
cell phone next to Robinson’s body. Text messages between Glenn and Lewis showed that the
two men were communicating with each other about a robbery moments before Robinson was
robbed and murdered. Even if trial counsel had objected to the instances of alleged misconduct
pointed to by Glenn on appeal, the untainted evidence connecting Glenn to the robbery of
Robinson would still have been before the jury. Thus, there is not a reasonable probability that,
but for trial counsel not objecting to the instances of alleged prosecutorial misconduct, the result
of Glenn’s trial would have been different. Trakhtenberg, 493 Mich at 51.

        Next, Glenn challenges trial counsel’s failure to object to certain remarks made by the
trial court. Glenn takes issues with the following exchange during Officer Rutledge’s testimony:

               The Court: I have one question.

                                                 -7-
                      Officer Rutledge, did you ever tell Star Lyte that she had to say
       that Jarvis Glenn was there or you were going to put Child Protective Services on
       her to have her children taken away?

              Witness Officer Rutledge. I would have had no way of knowing who
       Jarvo was if it wasn’t for her.

                      The interviews that I took with Star -- all of the interviews that I
       ever had with her were all recorded on video.

               The Court: Is the answer then, no?

               Witness Officer Rutledge: The answer is, no.

               The Court: Okay, that’s what I thought

        Glenn contends that based on this exchange, the trial court “inject[ed]” an “opinion
relating to Officer Rutledge’s credibility, and, by inference, the lack of credibility of [Star’s]
testimony . . . .” In context, however, we cannot agree with Glenn’s characterization of the trial
court’s statement. The trial court asked Officer Rutledge a question, and when the officer’s
answer was somewhat nonresponsive, the trial court sought clarification. When Officer Rutledge
told the trial court that it had properly understood his answer, the trial court said, “Okay, that’s
what I thought.” Defendant appears to contend that the trial court was saying that it thought
Officer Rutledge’s answer to its original question would be “no,” but in context, the trial court
was clearly saying that it thought that Officer Rutledge answered “no” to the question once it
was asked. Trial counsel was not ineffective for not objecting to the trial court’s remark because
there was nothing improper about it. See Knapp, 244 Mich App at 386.

        Even so, to the extent that the trial court’s remark could have been construed by jurors in
the way that Glenn argues and that trial counsel should have objected, Glenn cannot establish
that he suffered prejudice. The trial court’s remark was one line in a five-day trial. During those
five days, the prosecution presented substantial evidence connecting Glenn to the robbery and
murder of Robinson. Moreover, during final jury instructions, the trial court instructed the jurors
that none of its comments were intended to express a personal opinion about the case, and that if
the jurors believed that the trial court had a personal opinion on something, they should disregard
it. Jurors are presumed to follow the trial court’s instructions. People v Graves, 458 Mich 476,
486; 581 NW2d 229 (1998). Thus, there is not a reasonable probability that, but for trial counsel
not objecting to the trial court’s statement, the result of Glenn’s trial would have been different.
Trakhtenberg, 493 Mich at 51.

       Affirmed.



                                                             /s/ Colleen A. O’Brien
                                                             /s/ Jane M. Beckering
                                                             /s/ Anica Letica


                                                -8-
