                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 14, 2017
               Plaintiff-Appellee,

v                                                                  No. 333434
                                                                   Wayne Circuit Court
CHIRAM MILTON ARMSTEAD,                                            LC No. 15-006182-01-FC

               Defendant-Appellant.


Before: GADOLA, P.J., and CAVANAGH and SWARTZLE, JJ.

PER CURIAM.

       Defendant was charged with alternative counts of first-degree premeditated murder, MCL
750.316(1)(a), and first-degree felony murder, MCL 750.316(1)(b). The jury found defendant
guilty of first-degree murder under both theories. At sentencing, the trial court vacated the
felony-murder conviction and sentenced defendant to a single term of life imprisonment without
parole for the premeditated murder conviction. Defendant was also convicted of first-degree
home invasion, MCL 750.110a(2), and torture, MCL 750.85, for which the trial court sentenced
him to concurrent prison terms of 3 to 20 years for the home invasion conviction and 290 to 600
months for the torture conviction. Defendant appeals each of his convictions. We affirm.

                                      I. BACKGROUND

        Defendant’s convictions arise from a brutal attack on the victim, Eleanor Blevins, after a
group of three men broke into her motel room. On the evening of July 4, 2015, defendant,
Johnny Davis, and Kyle Kelly arrived at the Victory Inn in Detroit and began pounding on the
windows and doors of a motel room. As the three men were attempting to break into her motel
room, the victim called 911 requesting assistance. Eventually, defendant was able to push open a
window. He entered the room, opened the door, and the other two followed him in, while the
victim remained on the phone with 911.

       A recording of the 911 call was played for the jury and indicated that, shortly after
gaining entrance, someone asked the victim for money. When the victim responded that she did
not have any money, the person told her that she “got to die then.” At that point, defendant
began to beat severely the victim and strangle her, eventually causing her death. Much of what
happened was recorded on the motel’s video-surveillance system. Videos from this system were
played for the jury and showed defendant breaking into the motel room. On one video,
defendant could be seen pushing the victim down, and punching and kicking her as the motel
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door swung open and shut several times. On another video, Kelly could be seen walking away
from the room carrying a purse, and Davis could be seen wiping trace evidence from the door
handle.

        Officers Grima and Mart were first to arrive on scene. Both officers testified that, when
they arrived, the victim was gasping for air, although she did not have a pulse. Nonetheless, an
Emergency Medical Services report entered into evidence indicates that the victim was dead
when emergency personnel arrived on scene. The medical examiner testified that the victim had
several lacerations to her face, neck, and back, a broken nose, deep tissue and muscle
hemorrhages around the neck, subcutaneous bruising on her forehead, and hemorrhaging on her
brain. The trial court accepted into evidence photographs depicting the various injuries.
According to the medical examiner, the victim’s death was caused by strangulation, which would
cause death within three or four minutes.

       Officer Dabliz testified that he viewed the surveillance video and identified more than
one person with whom he was familiar. According to Officer Dabliz, he then accessed three
Facebook pages for the people he saw in the surveillance video and located a photograph of
defendant and the two accomplices on defendant’s Facebook account. In an attempt to establish
the foundation for admission of that photograph, the prosecution asked Officer Dabliz “when
[he] pulled [the photograph] up on social media.” Officer Dabliz responded that defendant had
“a Facebook page called Woody-Wood, that I already knew about from prior experience and
prior investigations.” Officer Dabliz identified defendant in the photograph, testified that
defendant was the person he saw in the video, and indicated that defendant was wearing the same
clothing in the photograph and the video.

        The prosecution questioned another officer, Officer Murphy, about the events leading up
to defendant’s arrest. Specifically, the prosecutor asked Officer Murphy whether he knew
defendant before his arrest, and how many times he had contact with him. Officer Murphy
responded that he had been in contact with defendant “[n]umerous times” and, when pressed by
the prosecutor to explain “how many,” Officer Murphy testified that he had “stopped [defendant
and his . . . friends probably once every other day.”

        In opening statement, and closing argument, defense counsel acknowledged that
defendant broke into the motel room, and was involved in a fight with the victim. Defense
counsel disputed, however, whether defendant acted with premeditation and whether defendant
strangled the victim. According to defense counsel’s theory, defendant believed that his friend
had rented the room and that the victim was trespassing there. As indicated above, the jury found
defendant guilty of each offense as charged.

        Defendant now raises several evidentiary issues on appeal, none of which entitle him to
any relief.

                                        II. ANALYSIS

       Defendant’s Challenge to His Felony-Murder Conviction Is Moot. First, defendant
argues that his felony-murder conviction should be vacated because the evidence was insufficient
to show that the victim was killed during the commission of a specified felony. MCL

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750.316(1)(b). Defendant’s challenge is, however, moot. The jury found defendant guilty of
alternative counts of first-degree premeditated murder, and first-degree felony murder predicated
on the felonies of first-degree home invasion and torture. Defendant does not challenge the
sufficiency of the evidence as it relates to the offenses of first-degree premeditated murder, first-
degree home invasion, and torture; he only contends that the evidence was insufficient to sustain
the verdict of first-degree felony murder.

        In this case, the trial court vacated defendant’s felony-murder conviction and sentenced
him to life without parole for the conviction of first-degree premeditated murder. The judgment
of sentence sets forth a single conviction and sentence for first-degree murder and it does not
reference any alterative theories. Because defendant’s conviction of first-degree felony murder
has already been vacated and he was not sentenced for first-degree murder under that alternative
theory, this issue is moot as there is no relief available to defendant. B P 7 v Bureau of State
Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998).

        Defendant’s Evidentiary Challenges Are Without Merit. Defendant next argues that he
was denied a fair trial due to the admission of certain prejudicial testimony, and that defense
counsel was ineffective for failing to object to the testimony and failing to move for a mistrial.
We review defendants unpreserved evidentiary claims for plain error affecting defendant’s
substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). An
unpreserved error affects a defendant’s substantial rights when it is prejudicial, i.e., when it
affects the outcome of the trial court proceedings. Id. at 763. Similarly, our review of
defendant’s unpreserved ineffective assistance of counsel claim “is limited to mistakes apparent
from the record.” People v Lane, 308 Mich App 38, 68; 862 NW2d 446 (2014).

         References to Prior Police Contact Did Not Affect Defendant’s Substantial Rights.
“[P]rosecutors and police witnesses have a special obligation not to venture into forbidden areas
of testimony which may prejudice the defense.” People v McCarver (On Remand), 87 Mich App
12, 15; 273 NW2d 570 (1978). References to a defendant’s prior criminal acts “are, unless
specifically ruled otherwise, generally inadmissible.” People v Spencer, 130 Mich App 527,
537; 343 NW2d 607 (1983). Yet “not every instance of mention before a jury of some
inappropriate subject matter warrants a mistrial.” People v Griffin, 235 Mich App 27, 36; 597
NW2d 176 (1999). “[A]n isolated or inadvertent reference to a defendant’s prior criminal
activities will not result in reversible prejudice,” but “deliberate and repeated efforts by the
prosecutor” to bring such matters to the jury’s attention can warrant the declaration of a mistrial.
People v Wallen, 47 Mich App 612, 613; 209 NW2d 608 (1973).

        “As a general rule, unresponsive testimony by a prosecution witness does not justify a
mistrial unless the prosecutor knew in advance that the witness would give the unresponsive
testimony or the prosecutor conspired with or encouraged the witness to give that testimony,”
People v Hackney, 183 Mich App 516, 531; 455 NW2d 358 (1990). Still, even this rule is not
steadfast and a mistrial may be warranted when “the error complained of is so egregious that the
prejudicial effect can be removed in no other way.” People v Lumsden, 168 Mich App 286, 299;
423 NW2d 645 (1988).

        Defendant first claims that Officer Dabliz’s testimony that he knew defendant from prior
investigations would have warranted a mistrial, and now warrants vacating his convictions. We

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disagree. In attempting to establish a foundation for admission of a photograph, the prosecutor
asked Officer Dabliz what he did when he found the photograph on social media. The officer
responded that he went to defendant’s Facebook page “that I already knew about from prior
experience and prior investigations.” This information was not responsive to the question asked,
which related to what Officer Dabliz did after he found the picture on Facebook, and there is
nothing in the record to suggest that the prosecutor knew that Officer Dabliz would mention how
he knew about defendant’s Facebook page or that the prosecutor encouraged him to mention it.
That Officer Dabliz’s testimony was unresponsive to the question asked weighs against declaring
a mistrial.

        Further, Officer Dabliz’s testimony on this point was not so prejudicial that a mistrial
would have been the only avenue to limit its detrimental effect. Because Officer Dabliz was a
police officer assigned to the Gang Intelligence Unit, the jury may have inferred that his “prior
investigations” of defendant were related to criminal activity. Officer Dabliz, however, did not
indicate that defendant was a gang member or that defendant himself had been investigated for
gang or criminal activity. It is equally likely that those investigations involved other persons
who were linked to defendant on social media, and his investigations of those persons had led
him to the discovery of defendant’s Facebook page. Moreover, the visual evidence in this case
tended to speak for itself. The video showed a person matching defendant’s appearance and
wearing the exact clothing as defendant is wearing in the photo. Defendant was pictured next to
the two other accomplices, who were also wearing the exact clothing as seen in the video. In
light of this overwhelming evidence, we are unable to conclude that Officer Dabliz’s testimony
was so prejudicial as to warrant the extreme remedy of a mistrial below, and a vacation of
defendant’s convictions on appeal. Indeed, we find that the prejudicial impact of this testimony
was minimal and that a limiting instruction, had it been requested, would have been sufficient to
expel any prejudice.

        Defendant similarly takes issue with Officer Murphy’s testimony that he stopped
defendant and his friends “probably once every other day.” Again, in light of the visual evidence
linking defendant to the crimes, we find that Officer Murphy’s oblique reference to his prior
contact with defendant was not so prejudicial as to affect defendant’s substantial rights or
warrant a mistrial. We find minimal the prejudicial impact of this testimony, and conclude that a
limiting instruction would have expelled any prejudice to defendant.

        Defense Counsel Was Not Ineffective. Defendant argues in the alternative that his trial
counsel was ineffective for not objecting to the officers’ testimony and for not requesting a
curative instruction. We disagree.

        To establish a claim of ineffective assistance of counsel, the defendant must “show both
that counsel’s performance fell below objective standards of reasonableness, and that it is
reasonably probable that the results of the proceeding would have been different had it not been
for counsel’s error.” People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007). To prove
deficient performance, “[t]he defendant must overcome a strong presumption that counsel’s
assistance constituted sound trial strategy.” People v Stanaway, 446 Mich 643, 687; 521 NW2d
557 (1994).



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        The decision whether to object to evidence is generally a matter of trial strategy. See
People v Cooper, 309 Mich App 74, 85; 867 NW2d 452 (2015). Oftentimes, counsel’s decision
not to raise an objection is a sound strategic decision, so as not to highlight prejudicial testimony.
See People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008). Here, the challenged
comments were isolated, and largely unsolicited. Objecting to the comments and requesting a
curative instruction would have likely drawn further attention to defendant’s past interactions
with police. Accordingly, we are unable to conclude that defendant has overcome the strong
presumption that defense counsel’s decision not to object was sound trial strategy.

        Moreover, even were we to conclude that defense counsel’s decision not to object was
objectively unreasonable, defendant has not shown a reasonable probability that a countervailing
strategy would have changed the outcome of his trial. Again, we note that extensive visual
evidence documented defendant’s involvement in the attacks. We find it unlikely that the jury
placed undue or preemptive weight on the officers’ isolated comments.

        Officer Dabliz’s Identification Testimony Did Not Affect Defendant’s Substantial Rights.
Defendant lastly argues that Officer Dabliz improperly invaded the province of the jury when he
identified defendant in the surveillance video and in photographs from defendant’s Facebook
page. A lay witness may offer testimony in the form of “opinions or inferences which are (a)
rationally based on the perception of the witness and (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue.” MRE 701. If, however, “a jury is as
capable as anyone else of reaching a conclusion on certain facts, it is error to permit a witness to
give his own opinion or interpretation of the facts because it invades the province of the jury.”
People v Drossart, 99 Mich App 66, 80; 297 NW2d 863 (1980).

        Here, whether Officer Dabliz’s identification testimony was improper is a close factual
question. We need not answer that question, however, because, even if we were to conclude that
the testimony was improper, defendant has not shown that the testimony affected his substantial
rights. During both opening statement and closing argument, defense counsel acknowledged that
defendant broke into the motel room and was involved in a fight with the victim. Defendant’s
admission makes clear that identity was not in dispute, and, even had defendant not admitted
identity, the extensive visual evidence in this case substantially established defendant’s identity.
Because identity was not a contested issue in the case, there is no basis for concluding that the
officer’s identification testimony affected the trial’s outcome. Accordingly, defendant has not
shown plain error and is entitled to no relief.

       Affirmed.



                                                              /s/ Michael F. Gadola
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Brock A. Swartzle




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