            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 10, 2019
               Plaintiff-Appellee,

v                                                                    No. 335754
                                                                     Oakland Circuit Court
CHARLES ANTHONY STEPHENS,                                            LC No. 2016-258463-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial conviction of first-degree felony murder, MCL
750.316(1)(b). The trial court sentenced defendant, a fourth habitual offender, MCL 769.12, to
the legislatively mandated term of life in prison without the possibility of parole, MCL
750.316(1). We affirm.

        This case arises out of a brutal stabbing murder and contemporaneous larceny committed
against defendant’s neighbor, the victim, in the apartment across the hall from where he and his
wife, TS, lived. Defendant’s mother, JR owned his apartment, to his displeasure. TS testified
that defendant frequently threatened her, including on the night before the murder, and made
threats to kill JR. Defendant stopped working a month before the murder and was upset that he
needed money to leave the apartment; additionally, he had been drinking, which TS testified
generally had a deleterious effect on his anger and self-control. Although there were no
eyewitnesses to the murder itself, defendant’s DNA was found on the victim, defendant was
found in possession of some of the victim’s belongings, and shortly after the murder defendant
sold, at a pawn shop, a valuable necklace that the victim’s faith required her to wear at all times.
TS also testified that defendant made her wash blood off a knife with bleach shortly after the
murder and left the apartment. Defendant testified on his own behalf, asserting that he was
having a consensual extramarital affair with the victim, he had no knowledge of her murder, and
his possession of her items was coincidental pursuant to a fencing scheme with an accomplice, a
maintenance worker who worked in the building, who defendant alleged committed the theft and
probably the murder. The jury apparently did not accept defendant’s version of events.
        Defendant first contends that the trial court abused its discretion when it denied his
motion for a mistrial during the testimony of defendant’s wife. Defendant specifically alleges
that the prosecutor improperly elicited or attempted to elicit testimony from TS that defendant (a)
threatened to kill TS, (b) threatened to kill JR, and (c) raped TS’s daughter. We disagree.

        Defendant timely argued that the prosecutor should not have elicited testimony that
defendant threatened JR and raped TS’s daughter; thus, his claims of prosecutorial error and for a
mistrial on that basis are preserved. People v Brown, 294 Mich App 377, 382; 811 NW2d 531
(2011); People v Pipes, 475 Mich 267, 277-278; 715 NW2d 290 (2006). Defendant further
objected to the relevance of defendant’s threat to kill TS, but did not argue that the admission of
this testimony either supported his motion for mistrial or constituted prosecutorial error.
Generally, a trial court’s decision on a motion for a mistrial is reviewed for an abuse of
discretion. People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995). “When error
involves the unsolicited outburst of a witness, the correct standard of review is whether the trial
court abused its discretion in denying the defendant’s motion for a mistrial. A mistrial should be
granted only where the error complained of is so egregious that the prejudicial effect can be
removed in no other way.” People v Gonzales, 193 Mich App 263, 266; 483 NW2d 458 (1992).
We review claims of prosecutorial error on a case-by-case basis in the context of the entire
record to determine whether the defendant was denied a fair trial. Brown, 294 Mich App at 382-
383. To the extent this issue requires review of the trial court’s evidentiary decisions, the trial
court’s decisions are reviewed for an abuse of discretion. People v Unger, 278 Mich App 210,
216; 749 NW2d 272 (2008).

         The trial court properly found defendant’s threats against TS to be admissible. Defendant
seems to contend that this evidence was improperly admitted as MRE 404(b) evidence.
However, defendant’s own statements are “just that—a statement, not a prior act. MRE 404(b)
does not apply to a defendant’s prior statements . . . Rather, the appropriate analysis is whether
the prior statement is relevant, and if so whether its probative value outweighs its potential
prejudicial effect.” People v Goddard, 429 Mich 505, 518; 418 NW2d 881 (1988). Defendant’s
threats explained in part why TS feared defendant, which in turn explained in part why she
initially lied to police regarding defendant’s whereabouts on the day of the murder, as well as
why she eventually cleaned the murder weapon, a knife, with bleach. The credibility of a
witness is almost always relevant and proper for the jury’s consideration. People v Layher, 464
Mich 756, 762-765; 631 NW2d 281 (2001). While that does not necessarily mean there are
never reasons why such evidence should nevertheless be excluded, defendant provides no
explanation why his threats to TS were unfairly prejudicial or otherwise improper.

        The trial court otherwise deemed inadmissible defendant’s threat to kill JR and TS’s
testimony regarding defendant’s purported rape of her daughter. The trial court immediately
instructed the jury to disregard those statements, so instructed the jury again after denying the
mistrial, and verbally confirmed from the jury that they understood its directions. “Jurors are
presumed to follow their instructions, and instructions are presumed to cure most errors.” People
v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). We find nothing in the record to
suggest that defendant was prejudiced. Nevertheless, we will consider defendant’s arguments.

      We note that both testimonial statements were unsolicited. TS testified to the threats in a
meandering response to the prosecutor’s question, “What was going on in the evening of the 20th

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over to the morning of the 21st?” In response to this question, TS explained that defendant had
been drinking excessively, that he was upset with JR, and consequently he said he wanted to kill
TS and JR. Defense counsel immediately objected, and the trial court sustained the objection;
neither explained the basis for so doing. The jury was instructed to disregard the entire response.
After eliciting testimony regarding defendant’s history of threatening TS, the prosecutor then
asked TS point-blank if defendant had ever threatened to kill JR. Defense counsel immediately
objected on relevance grounds. However, before the trial court could respond to the objection,
TS answered the question, “Yes.” The trial court immediately instructed the jury to disregard the
answer. It then sustained the objection and again instructed the jury to disregard TS’s answer.

        TS’s first statement about threats to JR was clearly unresponsive and unsolicited, which
is generally not a proper basis for granting a mistrial. Haywood, 209 Mich App at 228. While
we cannot entirely fault defendant’s argument that the prosecutor should not have made a
subsequent direct inquiry into those threats, we find it dispositive that defense counsel never
articulated a basis for the objection or which of several portions of TS’s response had been
objectionable. Therefore, the prosecutor clearly did not attempt to elicit facts that had clearly
been deemed inadmissible, and the prosecutor’s subsequent stated explanation for the question
reflects that the prosecutor did so in good faith. See Abraham, 256 Mich App at 278 (“A finding
of prosecutorial misconduct may not be based on a prosecutor’s good-faith effort to admit
evidence.”). The prosecutor was hardly the first to have a defense objection sustained at trial,
which is all that occurred here.

        TS’s statement that defendant had raped her daughter was clearly unresponsive,
volunteered testimony to a proper question. The prosecutor asked TS if she had been able to
sleep the night before the murder, a question that could and should have been answered either
“yes” or “no.” In response to this question, TS provided a lengthy answer that culminated in a
claim that defendant had raped her daughter. Nothing in the prosecutor’s questioning of TS
suggested that he could have expected such a response. Again, “an unresponsive, volunteered
answer to a proper question is not grounds for the granting of a mistrial.” Haywood, 209 Mich
App at 228. Furthermore, while as noted we find no prejudice in light of the trial court’s
instructions, there was little potential for prejudice in any event: the other evidence against
defendant was overwhelming and included DNA evidence and defendant’s possession and sale
of the victim’s personal belongings. The defense presented by defendant during trial suggested
exceedingly poor character on his part: that he was allegedly engaging in an extramarital affair
with the victim and had engaged in a fencing scheme with a maintenance employee who stole the
victim’s marital necklace, which, presumably, defendant somehow failed to recognize. Any
prejudice defendant suffered was, in context, relatively minimal, which precludes a mistrial as an
appropriate remedy. See Gonzales, 193 Mich App at 266.

       Defendant next argues that the prosecutor committed misconduct by improperly shifting
the burden of proof at trial by asking whether defendant could produce any other witnesses to
support his own testimony, and that his trial counsel was ineffective for failing to raise the issue.
We disagree.

       Because this claim of prosecutorial error was not raised below, it is unpreserved and
reviewed for plain error affecting defendant’s substantial rights. Brown, 294 Mich App at 382.
Furthermore, no error will be found if any prejudice could have been alleviated by a curative

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instruction. People v Bennett, 290 Mich App 465, 476; 802 NW2d 627 (2010). Likewise,
defendant did not move for a new trial a Ginther1 hearing below on the basis of ineffective
assistance of counsel, so this claim is also unpreserved, and our review is limited to mistakes
apparent on the record. People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002);
People v Rodgers, 248 Mich App 702, 713-714; 645 NW2d 294 (2001).

        We appreciate that the question raised is of concern. The prosecution is forbidden from
asserting that a defendant is obligated to prove anything, present evidence, or provide an
explanation for any particular evidence introduced by the prosecution. People v Fyda, 288 Mich
App 446, 463-464; 793 NW2d 712 (2010). However, “[a]ttacking the credibility of the theory
advanced by [defendant] did not shift the burden of proof” and is entirely proper. Id. at 464-465.
“The prosecution has wide latitude in arguing the facts and reasonable inferences, and need not
confine argument to the blandest possible terms.” People v Dobek, 274 Mich App 58, 66; 732
NW2d 546 (2007). The prosecution may not “burden a defendant’s right not to testify,” but if a
defendant elects to testify nonetheless, he opens himself up to questioning and commentary
regarding any alibis or alternate theories advanced by the defendant, which will then merely
constitute proper exploration of weaknesses in the defendant’s case. People v Fields, 450 Mich
94, 110-113; 538 NW2d 356 (1995).

        Defendant indeed chose to testify at trial and attempted to explain his possession of the
victim’s belongings by telling the jury that an accomplice had stolen the items and given them to
defendant to sell. Defendant attempted to explain why his DNA would be found on intimate
areas of the victim’s body by claiming that he had been having an extramarital affair with her for
several months. And in his closing argument, defense counsel argued that it was the accomplice
who committed the murder, despite the fact that virtually no evidence presented at trial
connected the accomplice to the murder. Both in questions posed to defendant and in his rebuttal
to defendant’s closing argument, the prosecutor asked defendant if anyone else could support
these claims. This was entirely proper as being fairly responsive to defendant’s defense. See
Fields, 450 Mich at 115-116. Additionally, the trial court properly instructed the jury that
defendant was presumed innocent, that the burden of proof was on the prosecutor, that nothing
stated by the prosecutor constituted evidence, and that defendant was “not required to prove his
innocence or to do anything.” These instructions are presumed to have alleviated any possible
prejudice arising from the prosecutor’s questioning of defendant and the prosecutor’s closing
argument. See Fyda, 288 Mich App at 465.

        Defendant’s related claim that counsel was ineffective lacks merit. Counsel is not
ineffective for failing to raise meritless or futile objections. People v Bailey, 310 Mich App 703,
728; 873 NW2d 855 (2015). As no instances of misconduct occurred, defense counsel had no
objections to make, and thus, was not ineffective.

      Defendant next contends that the prosecutor erred by eliciting testimony that defendant
was unemployed at the time of the murder, and that trial counsel was ineffective for failing to



1
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


                                                -4-
object. We disagree. Because defendant did not raise his claim of prosecutorial misconduct
below, our review is for plain error affecting substantial rights. Brown, 294 Mich App at 382.

         As a general matter, evidence of poverty or unemployment is usually inadmissible as
lacking in probative value but with great potential for unfair prejudice; however, the particular
circumstances of a given case may make a defendant’s unemployment relevant. People v
Henderson, 408 Mich 56, 66; 289 NW2d 376 (1980). Motive for a theft offense is usually “a
collateral issue of minimal importance,” but in some cases the reason why a defendant might
commit a theft could be baffling to the jury without some explanation. Id. at 66-68. The case
defendant cites stands for the reasonable and proper proposition that poverty does not itself
constitute evidence of intent, nor is it direct evidence of a crime. People v Johnson, 393 Mich
488, 491-500; 227 NW2d 523 (1975). We do not accept defendant’s conclusion that evidence of
or commentary on his employment status is inherently forbidden and inherently deprives him of
a fair trial.

         Defendant does not articulate why he suffered actual prejudice in this matter from the
evidence of his unemployment beyond a conclusory statement to that effect. We find such a
statement unpersuasive. See Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388
(1959). In light of the overwhelming other evidence against defendant, we fail to perceive how
any prejudice, even if admission of the testimony was erroneous, could have been more than
trivial. In any event, defendant was charged with first-degree felony murder, not larceny, and the
evidence of his recent loss of employment was admitted not to show a motive to commit theft,
but to show why defendant suddenly decided to brutally murder the victim despite having lived
across the hall from her for several months. It was not admitted for the purpose of showing that
he was a generally bad person, Henderson, 408 Mich at 66, or for the purpose of showing some
kind of generalized propensity toward committing larceny. Furthermore, it did not stand alone,
but was rather in the context of various other issues defendant had with anger and alcohol.
Under the circumstances, its admissibility would not fall outside the range of principled
outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

       Likewise, we find no lack of good faith on the part of the prosecutor. Abraham, 256
Mich App at 278. There is no indication that the prosecutor acted in bad faith by eliciting this
testimony. Indeed, the record shows that a bench conference was held when the prosecutor first
inquired into defendant’s employment history, after which no objections were placed on the
record and the prosecutor continued that line of inquiry. We simply cannot conceive of how the
prosecutor could be said to have elicited this evidence in bad faith where the matter was
discussed by the prosecutor, defense counsel, and the trial court, and there was no objection. As
such, defendant is not entitled to relief with regard to his claim of prosecutorial misconduct.

       Finally, we reject defendant’s claim of ineffective assistance of counsel. We do not find
the admission of this testimony to have been an abuse of discretion by the trial court, and we find
the other evidence against defendant to be overwhelming. There is no indication that its
introduction affected the outcome of the proceedings, and any objection would have been futile.
See People v Foster, 319 Mich App 365, 390-391; 901 NW2d 127 (2017). Furthermore,
defendant’s entire defense was that he was engaging in a scheme of fencing stolen property,
which in turn would be explained by his need for money, as demonstrated by his recent loss of
employment. Decisions regarding what evidence should be put to the jury are generally

                                                -5-
presumed to be matters of trial strategy, and we will not second-guess them with the benefit of
hindsight. People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).

       Finally, defendant argues that even if the prejudice from each individual instance of
alleged prosecutorial error would not warrant a new trial, the cumulative effect thereof would.
We disagree. As this Court explained in Dobek, 274 Mich App at 106:

       We review this issue to determine if the combination of alleged errors denied
       defendant a fair trial. The cumulative effect of several errors can constitute
       sufficient prejudice to warrant reversal even when any one of the errors alone
       would not merit reversal, but the cumulative effect of the errors must undermine
       the confidence in the reliability of the verdict before a new trial is granted.
       Absent the establishment of errors, there can be no cumulative effect of errors
       meriting reversal. [Citations omitted.]

Because we do not find any prosecutorial error, there can be no cumulative error. Id.

       Affirmed.

                                                           /s/ William B. Murphy
                                                           /s/ Kathleen Jansen
                                                           /s/ Amy Ronayne Krause




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