                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 15, 2015
               Plaintiff-Appellee,

v                                                                    No. 322802
                                                                     Alger Circuit Court
DAVID LEE JAMERSON,                                                  LC No. 2013-002058-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

       Defendant appeals by right his jury trial convictions of assault on a prison employee,
MCL 750.197c(1), and assaulting an officer while performing his duty and causing injury, MCL
750.479(1)(3). The trial court sentenced defendant as a habitual offender, fourth offense, MCL
769.12, to serve concurrent prison terms of 42 months to 50 years for the assault on a prison
employee conviction, and 42 months to 15 years for the assault on an officer conviction. We
affirm but remand for a determination of a factual basis for the costs imposed on defendant.

        Defendant first argues that evidence of his prior misconducts in prison should not have
been admitted. We agree in part but note that defendant failed to object and find no plain error
that affected defendant’s substantial rights. MRE 103(d); People v Carines, 460 Mich 750, 763;
597 NW2d 130 (1999).

       A prison records department supervisor testified on cross-examination that defendant
could have remained imprisoned beyond the 20-year maximum for his 1991 sentence because
prison misconducts could have extended his sentence. A probation officer then explained that a
maximum sentence cannot be increased by bad behavior, that defendant’s 1991 sentence was
being served consecutively to another sentence, that he was therefore not erroneously
imprisoned, and that his 2017 release date was calculated correctly.

         Defendant argues that evidence of his previous misconducts was not relevant and that it
was used only to demonstrate his propensity for anti-social behavior. “An important element of
a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of
guilt or innocence.” Bruton v US, 391 US 123, 131 n 6; 88 S Ct 1620; 20 L Ed 2d 476 (1968).
But, a defendant is entitled to a fair trial, not a perfect one. Id. at 135; People v Reed, 449 Mich
375, 379; 535 NW2d 496 (1995). Evidence is relevant if it has any tendency to make the
existence of a fact that is of consequence to the action more probable or less probable than it
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would be without the evidence. MRE 401. The relationship of the evidence to the elements of
the charge, the theories of admissibility, and the defenses asserted govern whether it is relevant.
People v Yost, 278 Mich App 341, 403; 749 NW2d 753 (2008).

        To demonstrate that defendant was guilty of assault on a prison employee, plaintiff had to
prove that defendant was lawfully imprisoned in a place of confinement. MCL 750.197c(1);
People v Williams, 173 Mich App 312, 318; 433 NW2d 356 (1988). Defendant contested his
confinement beyond 2011, and the supervisor speculated about the possibility that misconduct or
“string” sentencing could have extended defendant’s sentence. The supervisor did not discuss
any specific instances of defendant’s misconduct, only the possibility that misconduct might
have extended his sentence. Moreover, the mention of possible misconduct was relevant to an
element of the crime charged, that defendant was lawfully imprisoned.

        Apart from these vague references to prison misconducts, a deputy warden reported that
defendant had been in segregation twice. Defendant was asked on cross-examination about how
much time he had spent in segregation, and he responded that he had volunteered for three
months of segregation to avoid his wild cellmate. The deputy warden subsequently testified that
a prisoner cannot volunteer to be segregated; he would only be segregated because of
misconduct. Defendant was segregated twice for a total of ten months during his 18 months at
this specific prison. Thus, prior misconducts were implied.

        It does not appear that plaintiff’s initial question regarding defendant’s time in
segregation could have elicited relevant information. The amount of time that defendant
previously spent in segregation did not provide any information about any fact at issue in the
case. Plaintiff had previously clarified that any time in segregation would not have affected the
length of defendant’s sentence, and the evidence did not relate to whether defendant assaulted
the prison guard.

       Likewise, evidence that defendant received a misconduct ticket due to the assault incident
for which he was on trial was irrelevant. The facts of the assault were before the jury, which was
empaneled to determine the validity of the charges. That the prison officials thought defendant’s
behavior warranted issuing a misconduct ticket could not aid the jury in its determination.

       Other acts evidence is excluded except as allowed by MRE 404(b) to avoid the danger of
conviction based on a defendant’s history of misconduct. People v Starr, 457 Mich 490, 495;
577 NW2d 673 (1998). Generally, to be admissible under MRE 404(b), other acts evidence (1)
must be offered for a proper purpose, (2) must be relevant, and (3) must not have a probative
value substantially outweighed by its potential for unfair prejudice. Id. at 496. A proper purpose
is one other than establishing the defendant’s character to show his propensity to commit the
offense. People v Johnigan, 265 Mich App 463, 465; 696 NW2d 724 (2005).

       Although the evidence was objectionable, we note that the jury did not hear any reference
to a specific act of misconduct by defendant other than the reference to the same incident for
which defendant was on trial. Evidence that defendant was in segregation did not demonstrate a
propensity for assaultive acts in the prison. Because the information was about time in
segregation, generally, and not specifically about misconduct or violence, we conclude that the
jury was unlikely to give the evidence much weight in light of the specific charges of assault.

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        Defendant also argues that the prosecutor committed misconduct by presenting evidence
of defendant’s misconduct and by arguing for conviction based on defendant’s history of
misconduct in prison. A defendant is denied a fair trial when a prosecutor deliberately and
repeatedly introduces improper evidence for the purpose of gaining a conviction. People v
Morgan, 86 Mich App 226, 227; 272 NW2d 249 (1978). Moreover, a prosecutor must refrain
from denigrating a defendant with intemperate and prejudicial remarks. People v Bahoda, 448
Mich 261, 282-283; 531 NW2d 659 (1995). But review is precluded because defendant failed to
object and could have potentially cured any error. See People v Rodriguez, 251 Mich App 10,
30; 650 NW2d 96 (2002). Further, some of the evidence regarding defendant’s prior misconduct
was admissible, and the irrelevant evidence did not affect a substantial right. Moreover, the
remarks appear to have been made in the context of plaintiff’s theory of the case, not as an effort
to disparage defendant. The prosecutor was explaining how defendant could have the mindset to
claim that he was disrespected and challenged while being the aggressor. The prosecutor argued
that the evidence of defendant’s history and behavior suggested that he may not have wanted to
get out of prison, which was a reasonable inference from the evidence. See People v Unger (On
Remand), 278 Mich App 210, 236; 749 NW2d 272 (2008) (noting that prosecutors “are generally
free to argue the evidence and all reasonable inferences from the evidence as it relates to their
theory of the case”).

        Defendant also argues that his trial counsel provided ineffective assistance in failing to
object to the prosecutor’s remarks and evidence of defendant’s prior misconduct. A defendant’s
right to counsel is guaranteed by US Const, Am VI and Const 1963 art 1, § 20 encompasses the
right to effective assistance of counsel. People v Cline, 276 Mich App 634, 637; 741 NW2d 563
(2007). To establish a claim of ineffective assistance of counsel a defendant must show (1) that
counsel’s performance was deficient and (2) that counsel’s deficient performance prejudiced the
defense. People v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2006). Counsel’s
performance is deficient if it falls below an objective standard of professional reasonableness and
causes prejudice when it is reasonably probable that but for counsel’s error the result of the
proceeding would have been different. People v Jordan, 275 Mich App 659, 667; 739 NW2d
706 (2007). The effective assistance of counsel is presumed, and the defendant bears the heavy
burden of proving otherwise. Id. at 667-668.

        Defendant did not demonstrate that when considered in context, the prosecutor’s closing
argument was improper. Counsel is not ineffective for failing to raise futile objections. Cline,
276 Mich App at 641-642. Trial counsel’s performance, however, was deficient in failing to
object to questions regarding defendant’s time in segregation.

        Nonetheless, the evidence against defendant was compelling considering that several
prison staff witnessed defendant assaulting the officer, and only defendant stated that he was
provoked. The officer required medical attention, and no one, including defendant, testified that
the guard struck defendant. The video recordings of the incident did not support defendant’s
theory that he was defending himself. Based on this evidence, defendant cannot demonstrate that
the jury’s credibility determination would have changed absent the references to segregation.
Thus, defendant has not established a reasonable probability that but for counsel’s error the result
of the proceeding would have been different. Jordan, 275 Mich App at 667.



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        Next, defendant argues that evidence that he was found guilty in a prison disciplinary
hearing of misconduct on the basis of the incident for which he was on trial was inadmissible.
He also argues that his trial counsel was ineffective for failing to object. We agree that the
outcome of the disciplinary hearing was not relevant to the circumstances of the assault and
should have been excluded. But, again, defendant is not able to demonstrate that admission of
the evidence was prejudicial or outcome determinative. Despite the jury’s knowledge of the
outcome of the disciplinary proceedings, defendant did not argue that he did not hit the officer;
he claimed that he was defending himself. However, several officers testified that defendant was
the aggressor and punched the officer. Additionally, the video recordings of the incident support
the officers’ testimony that the officer involved did not instigate or provoke defendant. There
was no evidence that the officer hit defendant at any time, even after defendant hit him. Thus, it
is not likely that a jury would have acquitted defendant if this evidence had been properly
excluded. Since the error was not outcome determinative and did not deny defendant a fair trial,
we conclude it was not error requiring reversal.

        Next, defendant argues that the trial court erred in denying his motion for substitute
counsel. The Court reviews a trial court’s decision regarding substitution of counsel for an abuse
of discretion, which occurs when the court’s decision falls outside the range of reasonable and
principled outcomes. People v Strickland, 293 Mich App 393, 397; 810 NW2d 660 (2011).

        “Appointment of a substitute counsel is warranted only upon a showing of good cause
and where substitution will not unreasonably disrupt the judicial process. Good cause exists
where a legitimate difference of opinion develops between a defendant and his appointed counsel
with regard to a fundamental trial tactic.” People v Mack, 190 Mich App 7, 14; 475 NW2d 830
(1991)(citations omitted). Whether good cause existed under the circumstances is determined by
the individual facts in each case. People v Buie (On Remand), 298 Mich App 50, 67; 825 NW2d
361 (2012).

        Where a defendant asserts that his trial counsel is not adequate or diligent, the trial court
should hear the defendant’s claim and state its findings and conclusion on the record. Strickland,
293 Mich App at 397. Here, defendant complained that he was having the same problems he had
with his first trial counsel: obtaining witness statements and video evidence. Defendant’s trial
counsel stated that he had submitted a discovery request for the video and had interviewed
inmates and staff as possible witnesses but concluded that their testimony would not have been
helpful. The trial court found that defendant’s trial counsel had diligently prepared for trial.

        A complete breakdown of the attorney-client relationship or disagreement over whether a
particular line of defense should be pursued may justify appointing new counsel. Buie, 298 Mich
App at 67. Defendant, however, does not specify any witnesses that trial counsel did not
consider, and he does not argue that his trial counsel failed to present a particular defense.
Defendant stated that the prisoner witnesses would have testified about an incident in the shower
on the morning of the assault. Defendant’s trial counsel responded that he had discussed the case
with defendant and had followed up on defendant’s concerns. A trial counsel’s decisions about
what evidence to present and what arguments to make are matters of trial strategy, and
defendant’s disagreements with his counsel’s trial strategy or professional judgment do not
justify a substitution of counsel. Strickland, 293 Mich App at 398. The record does not


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demonstrate that defendant’s trial attorney was inattentive, inadequate, or disinterested. The trial
court did not abuse its discretion in denying defendant’s motion for substitute trial counsel.

        Finally, defendant argues that the trial court erred in imposing $300 in costs on
defendant. The trial court imposed costs under MCL 769.1k(1)(b)(ii), which then provided that
the court could impose “[a]ny cost in addition to the minimum state cost set forth in subdivision
(a).” However, in People v Cunningham, 496 Mich 145, 154, 158-159; 852 NW2d 118 (2014),
the Court held that MCL 769.1k(1)(b)(ii) did not authorize trial courts to impose “any cost” on a
defendant, but only those costs “that the Legislature has separately authorized by statute.” In the
instant case, defendant was convicted of violating MCL 750.197c(1) and MCL 750.479(3), both
of which provided for the imposition of fines and not costs. Thus, under Cunningham, MCL
769.1k(1)(b)(ii) did not authorized the trial court to assess costs to defendant.

        Subsequently, on October 17, 2014, the Legislature enacted 2014 PA 352, which
amended MCL 769.1k to authorize a trial court to impose “any cost reasonably related to the
actual costs incurred by the trial court without separately calculating those costs involved in the
particular case.” MCL 769.1k(1)(b)(iii). The costs authorized under MCL 769.1k include, but
are not limited to “salaries and benefits for relevant court personnel,” “goods and services
necessary for the operation of the court,” and “necessary expenses for the operation and
maintenance of court buildings and facilities.” MCL 769.1k(1)(b)(iii)(A),(B), and (C).

        The amended act was given immediate effect. Enacting section 1 of 2014 PA 352
provided that it was to apply to costs assessed before June 18, 2014, and after the effective date
of the amendatory act. Enacting section 2 provided that “[t]his amendatory act is a curative
measure that addresses the authority of courts to impose costs . . . before the issuance of the
Supreme Court opinion in [Cunningham].” 2014 PA 352, enacting § 2. Here, the trial court
issued the judgment of sentence providing for the costs on April 22, 2014. Thus, applying the
Legislature’s expressed intent means the amended act retroactively provided the trial court in this
case with the authority to impose costs on defendant that were reasonably related to the trial
court’s actual costs.

        Defendant argues that MCL 769.1k, as amended, could not be applied retroactively to
him because to do so would violate protections against ex post facto laws, US Const, art 1, § 10;
Const 1963, art 1, § 10, since the costs are a form of punishment that was not authorized at the
time defendant committed the sentencing offenses. This Court, however, recently rejected this
same argument in People v Konopka, ___ Mich App ___; ___ NW2d ___ (2015), holding that
the retroactive application of MCL 769.1k did not violate protections against ex post facto
punishments. The court applied the test set forth in People v Earl, 495 Mich 33, 38-39; 845
NW2d 721 (2014), to determine that the Legislature intended the costs provision of MCL
769.1k(1)(b)(iii) to be a civil remedy, and that the costs provision in MCL 769.1k(1)(b)(iii) was
not so punitive in purpose or effect to negate the Legislature’s civil intent. Id.

      Thus, the trial court’s imposition of costs was authorized by retroactive application of
MCL 769.1k(1)(b)(iii), as provided by the Legislature. Konopka, ___ Mich App at ___. As in
Konopka, however, the trial court did not provide the factual basis for the costs imposed pursuant
to MCL 769.1k(1)(b)(iii). Consequently, we must remand for such a determination.


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        We affirm but remand for proceedings consistent with this opinion. We do not retain
jurisdiction.

                                                       /s/ Jane E. Markey
                                                       /s/ Cynthia Diane Stephens
                                                       /s/ Michael J. Riordan




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