                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 1, 2018
                Plaintiff-Appellee,

v                                                                  No. 333978
                                                                   Oakland Circuit Court
MATTHEW MILLER METCALF,                                            LC No. 2015-256591-FH

                Defendant-Appellant.


Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.

PER CURIAM.

       Following a jury trial, defendant was convicted of second-degree home invasion, MCL
750.110a(3). He was sentenced as an habitual offender, MCL 769.12, to 8 to 30 years’
imprisonment. Defendant appeals as of right. We affirm.

       On July 23, 2015, Christine Bunch’s house was broken into through a window on her
front porch. Two televisions, a Kindle Fire HD tablet, and an Amazon Fire Stick were taken
from inside the house. A fingerprint retrieved from the window was determined to match
defendant’s fingerprint. Police discovered that the televisions had been pawned at a pawn shop,
and that defendant’s identification had been provided to the pawn shop, defendant’s fingerprint
was on a receipt at the pawn shop, and defendant’s signature was on the pawn shop receipt.

       Defendant was arrested and charged with second-degree home invasion. Defendant
agreed to speak to police, signed a Miranda1 waiver form, and never invoked his right to an
attorney. After learning that police knew he had pawned the televisions, defendant admitted that
he had, in fact, pawned the televisions.

        At trial, defendant testified that a friend, Daniel Vandenberg, had taken him to Bunch’s
house on that day and had shown him the two televisions that were on the porch of the house.
Defendant helped Vandenberg remove the televisions from Bunch’s porch, and pawned the
televisions. Defendant testified that he did not realize that the televisions were stolen. Earlier
that day, defendant had seen Vandenberg in possession of a Kindle Fire and an Amazon Fire


1
    Miranda v Arizona, 348 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                               -1-
Stick, but testified that he did not know that they were stolen. Defendant admitted that he had
previously attempted to help Vandenberg pawn stolen property. Defendant also admitted that he
had not earlier told police about Vandenberg’s involvement, explaining that he was trying to
protect Vandenberg.

                                           DISCUSSION

        On appeal, defendant argues that defense counsel at trial was ineffective because he
failed to object to (1) the trial court’s instruction on aiding and abetting; (2) the trial court’s
answers to jury questions during deliberations; (3) the admission of defendant’s prior convictions
into evidence; and (4) instances of prosecutorial misconduct. To preserve a claim of ineffective
assistance of counsel, the defendant must move for a new trial or request a Ginther2 hearing to
establish the basis of the claim. People v Lopez, 305 Mich App 686, 693; 854 NW2d 205
(2014). In this case, defendant did not preserve this claim by making a motion for a new trial or
moving for an evidentiary hearing. Accordingly, our review is limited to errors apparent on the
record. Id. Whether defense counsel performed ineffectively presents a mixed question of fact
and law; we review the trial court’s findings of fact for clear error and review de novo questions
of constitutional law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).

        The United States and Michigan Constitutions both guarantee the right of a defendant in a
criminal trial to the effective assistance of counsel. People v Kammeraad, 307 Mich App 98,
122; 858 NW2d 490 (2014), citing US Const, Am VI; Const 1963, art 1, § 20. Generally, to
prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate 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 of the
proceeding would have been different. People v Solloway, 316 Mich App 174, 188; 891 NW2d
255 (2016). The defendant bears the burden of establishing the factual predicate of an
ineffective assistance claim. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).

                         1. AIDING AND ABETTING INSTRUCTION

        At trial, the trial court gave the jury the instruction for aiding and abetting. Defendant
now contends that his trial counsel was deficient by failing to object to the instruction, arguing
that the evidence, at most, established that defendant was an accessory after the fact. We
disagree.

        “The instruction to the jury must include all elements of the crime charged, and must not
exclude from jury consideration material issues, defenses or theories if there is evidence to
support them.” People v Reed, 393 Mich 342, 349-350; 224 NW2d 867 (1975) (citations
omitted). A jury instruction must be given if it is applicable, accurately states the applicable law,
and is requested by a party. MCR 2.512(D)(2). The determination as to whether a particular
instruction is applicable to the facts of the case is within the discretion of the trial court. People
v Ho, 231 Mich App 178, 189; 585 NW2d 357 (1998).


2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -2-
       MCL 750.110a(3) defines second-degree home invasion:

       A person who breaks and enters a dwelling with intent to commit a felony,
       larceny, or assault in the dwelling, a person who enters a dwelling without
       permission with intent to commit a felony, larceny, or assault in the dwelling, or a
       person who breaks and enters a dwelling or enters a dwelling without permission
       and, at any time while he or she is entering, present in, or exiting the dwelling,
       commits a felony, larceny, or assault is guilty of home invasion in the second
       degree.

“Dwelling,” for purposes of this statute, means “a structure or shelter that is used permanently or
temporarily as a place of abode, including an appurtenant structure attached to that structure or
shelter.” MCL 750.110a(1)(a). Further, any amount of force used to open a door or window, no
matter how slight, is sufficient to constitute a breaking. People v Wise, 134 Mich App 82, 88;
351 NW2d 255 (1984).

       MCL 767.39 provides that:

       Every person concerned in the commission of an offense, whether he directly
       commits the act constituting the offense or procures, counsels, aids, or abets in its
       commission may hereafter be prosecuted, indicted, tried and on conviction shall
       be punished as if he had directly committed such offense.

        The elements of aiding and abetting are “(1) the crime charged was committed by the
defendant or some other person; (2) the defendant performed acts or gave encouragement that
assisted the commission of the crime; and (3) the defendant intended the commission of the
crime or had knowledge that the principal intended its commission at the time that [the
defendant] gave aid and encouragement.” People v Plunkett, 485 Mich 50, 61; 780 NW2d 280
(2010). Aiding and abetting includes all forms of assistance given to the perpetrator of a crime,
such as “all words or deeds which may support, encourage or incite the commission of a
crime . . . [and] the actual or constructive presence of an accessory, in preconcert with the
principal, for the purpose of rendering assistance . . . . The amount of advice, aid or
encouragement is not material if it had the effect of inducing the commission of the crime.”
People v Palmer, 392 Mich 370, 378; 220 NW2d 393 (1974) (citations omitted). This Court has
held that “[t]he jury may be instructed about aiding and abetting where there is evidence that (1)
more than one person was involved in committing a crime, and (2) the defendant’s role in the
crime may have been less than direct participation in the wrongdoing.” People v Bartlett, 231
Mich App 139, 157; 585 NW2d 341 (1998).

         In this case, the evidence was sufficient to allow a reasonable jury to conclude that
defendant was guilty of second-degree home invasion either as a principal or as an aider and
abettor. In support of the theory that defendant was the principal in the home invasion, Bunch
testified that both televisions were inside her home when she left for work on the day of the
incident. Defendant admits that he was at Bunch’s house that day. Defendant’s fingerprint was
found on the front porch window believed to be the point of entry into the home. The police
found the window screen pushed up and a “stop tab” device on the floor of the home’s interior,
suggesting that the window had been forced open. Defendant was never given permission to

                                                -3-
enter the home or to take any of Bunch’s property. Defendant admitted that he sold the two
televisions to the pawn shop that same day. “Circumstantial evidence and reasonable inferences
arising from that evidence can constitute satisfactory proof of the elements of a crime.” People v
Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993). The jury could have inferred from the
evidence that defendant went to Bunch’s home, forced open the window, entered the home
without permission, and removed the items from the home. Thus, the evidence was sufficient for
the jury to have convicted defendant as a principal. See MCL 750.110a(3).

        The evidence was also sufficient to convict defendant as an aider and abettor. Before a
defendant can be found guilty under a theory of aiding and abetting, the underlying offense must
be proven. People v Blevins, 314 Mich App 339, 358; 886 NW2d 456 (2016). Here, the
evidence demonstrated that the home invasion occurred, whether perpetrated by defendant or
someone else. In addition, to be convicted as an aider and abettor, a defendant must either
possess the requisite intent to commit the underlying offense or participate while knowing that
co-participants possess the requisite intent. People v Karst, 118 Mich App 34, 39; 324 NW2d
526 (1982). In this case, accepting defendant’s version of the events as true, defendant
accompanied Vandenberg to the house knowing Vandenberg’s history of stealing personal
property; in fact, defendant had attempted to help Vandenberg pawn stolen items in the past.
That day, defendant noticed Vandenberg in possession of an Amazon Fire Stick and the Kindle
Fire HD, which defendant testified he had never known Vandenberg to own. Defendant then
assisted Vandenberg in removing the televisions from the porch of the house. Defendant knew
that he did not own the televisions and had no reason to believe that the televisions belonged to
Vandenberg. The jury therefore could infer that defendant knew that they were stealing the
televisions when he and Vandenberg removed them from the porch, constituting aiding and
abetting second-degree home invasion. See Palmer, 392 Mich at 378.

        Defendant argues that he was, at most, an accessory after the fact, and that on that basis
defense counsel should have objected to the jury instruction on aiding and abetting. An
accessory after the fact is “one who, with knowledge of the other’s guilt, renders assistance to a
felon in the effort to hinder his detection, arrest, trial or punishment” and is comparable to
obstruction of justice. People v Perry, 460 Mich 55, 62; 594 NW2d 477 (1999) (citation
omitted). In this case, however, defendant was not charged with being an accessory after the
fact, which is a separate offense and not a lesser included offense of second-degree home
invasion, sharing none of the elements of that offense. See id. at 56, 59-60; see also People v
Jones, 497 Mich 155, 164; 860 NW2d 112 (2014) (a defendant is entitled to a lesser offense
instruction only if that lesser offense is necessarily included in the greater offense, that is, it must
be impossible to commit the greater offense without first committing the lesser offense.) By
contrast, there was ample evidence presented at trial to permit an inference that defendant was
guilty of second-degree home invasion as a principal and as an aider and abettor. Accordingly,
any objection defense counsel might have made to the instruction would have been meritless,
and the failure to object did not constitute ineffective assistance of counsel. See People v
Ericksen, 288 Mich App 192, 205; 793 NW2d 120 (2010).

                   2. TRIAL COURT’S RESPONSE TO JURY QUESTIONS

       Defendant next contends that defense counsel at trial was ineffective because he failed to
object when the trial court answered questions posed by the jury. We disagree.

                                                  -4-
        The trial court received two questions from the jury during deliberations. The jury first
asked “[i]f we go by [defendant’s] story that he knew about the TVs from Vandenberg at the
hotel, got into the car, helped him remove the TVs from the porch and sold them, at what point is
he aiding and abetting to the home invasion? Or does this fall under a different law?” The trial
court responded to this question by rereading the aiding and abetting instruction. The parties did
not object. The jury then asked “[a]t what point is it considered to be an entry into the home; if
someone raises the screen or the screen is open and touches the outside of the window which is
inside the screen is it an entry?” The trial court responded by rereading the instructions
pertaining to second-degree home invasion by entry without permission.

        We read jury instructions as whole, not piecemeal, when determining whether error
warranting reversal has occurred. People v Chapo, 283 Mich App 360, 373; 770 NW2d 68
(2009). We will find no error if the jury instruction fairly presented the issues to be tried and
sufficiently protected the defendant rights, even if the instructions are imperfect. Id. When a trial
court’s response to a question from the jury is legally accurate and did not mislead the jury, this
Court has found that no error occurred. See People v Katt, 248 Mich App 282, 310-311; 639
NW2d 815 (2001).

         Defendant appears to argue that the trial court should have given more specific answers
to the jury’s questions regarding when an aiding and abetting might have occurred and when a
breaking might have occurred. The trial court, however, may not instruct a jury that an essential
element of a criminal offense has been established. People v Reed, 393 Mich 342, 351; 224
NW2d 815 (2001). It is for the jury to determine all the elements of a crime. Id. In response to
the questions, the trial court could not have done more than reassert the controlling law. By
rereading the jury instruction to the jury, the trial court accurately instructed the jury on the law.
Because the trial court gave appropriate responses to the jury’s questions, any objection by
defense counsel would have been meritless. Defense counsel therefore was not ineffective for
failing to object. See Ericksen, 288 Mich App at 205.

                          3. DEFENDANT’S PRIOR CONVICTIONS

       Defendant next contends that defense counsel at trial was ineffective when he failed to
move to exclude evidence of defendant’s two prior convictions for second-degree home
invasion. We disagree.

       MRE 609 provides for the admission of evidence of certain prior convictions for the
purpose of impeachment of a witness’s credibility. People v Snyder (After Remand), 301 Mich
App 99, 105; 835 NW2d 608 (2013). MRE 609(a) provides:

       For the purpose of attacking the credibility of a witness, evidence that the witness
       has been convicted of a crime shall not be admitted unless the evidence has been
       elicited from the witness or established by public record during cross-
       examination, and

       (1) the crime contained an element of dishonesty or false statement, or

       (2) the crime contained an element of theft, and


                                                 -5-
       (A) the crime was punishable by imprisonment in excess of one year or death
       under the law under which the witness was convicted, and

       (B) the court determines that the evidence has significant probative value on the
       issue of credibility and, if the witness is the defendant in a criminal trial, the court
       further determines that the probative value of the evidence outweighs its
       prejudicial effect.

        When the witness is also the defendant in a criminal trial, a prior conviction is
inadmissible unless the trial court determines that the probative value of the evidence outweighs
its prejudicial effect. MRE 609(a)(2)(B); Snyder, 301 Mich App at 106. With regard to the
appropriate analysis of the probative value and prejudicial effect of the statements, MRE 609(b)
provides:

       For purposes of the probative value determination required by subrule (a)(2)(B),
       the court shall consider only the age of the conviction and the degree to which a
       conviction of the crime is indicative of veracity. If a determination of prejudicial
       effect is required, the court shall consider only the conviction's similarity to the
       charged offense and the possible effects on the decisional process if admitting the
       evidence causes the defendant to elect not to testify. The court must articulate, on
       the record, the analysis of each factor.

       This Court has explained that when the prior conviction is identical to the charged
offense, admission of the prior conviction is highly prejudicial because the risk is high that the
jury will be persuaded to convict the defendant based on the similarity of the offenses. Snyder,
301 Mich App at 106. Defendant in this case argues that because defendant’s prior convictions
were for home invasion, the evidence of the prior convictions was so prejudicial that it should
have been excluded, and that defense counsel at trial was ineffective for failing to move to
exclude the convictions.

        Here, before defendant testified, and out of the presence of the jury, defense counsel
asked defendant on the record if he understood that his prior convictions for home invasion
would be admissible if he testified. Defendant indicated that he understood. Thereafter, when
defendant testified in front of the jury he volunteered, without prompting by defense counsel, the
information that he twice had been convicted of home invasion. Defense counsel’s response to
defendant interjecting this information suggests that defense counsel was in fact surprised by
defendant’s testimony. It is therefore unclear whether defense counsel intended for defendant to
testify as to the prior convictions, or whether defendant himself unwittingly introduced the
information.

        Defense counsel at trial may have chosen to introduce the evidence as a matter of strategy
anticipating, perhaps incorrectly, that an attempt to exclude the evidence would be unsuccessful.
A defendant with prior convictions who chooses to testify must decide whether, as a matter of
strategy, to introduce the prior convictions on direct examination and thereby “remove the sting”
of the information, or wait for the prosecutor to attempt to elicit the information on cross-
examination. See People v Rodgers, 248 Mich App 702, 716; 645 NW2d 294 (2002).
Anticipating that a prosecutor will attempt to introduce evidence of defendant’s prior convictions

                                                 -6-
to impeach the defendant’s credibility as a witness, it is not unreasonable for defense counsel at
trial to choose to introduce the evidence of the prior convictions on direct examination as a
matter of strategy.

        A defendant claiming ineffective assistance of counsel must overcome the strong
presumption that counsel’s tactics constituted sound trial strategy. People v Payne, 285 Mich
App 181, 190; 774 NW2d 714 (2009). This Court will not substitute its judgment for the
judgment of trial counsel on matters of trial strategy, nor will we assess counsel’s competence
with the benefit of hindsight. People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272
(2008). In this case, although defense trial counsel might have been successful had he attempted
to exclude the evidence of the prior convictions, this Court will not substitute its judgment for
that of trial counsel in matters of trial strategy, even when that strategy backfired. And in this
case, given that defendant revealed his prior convictions without prompting from defense
counsel, it is difficult to say whether this was part of a defense strategy gone awry or, rather, a
wound defendant inflicted upon himself.

         Moreover, to succeed on a claim of ineffective assistance of counsel, defendant must
show that but for counsel’s deficient performance,3 there is a reasonable probability that the
outcome of the proceeding would have been different. Here, the evidence of defendant’s guilt
was overwhelming. Defendant admitted that he went to Bunch’s house on the day in question
and removed the televisions from the porch of the house. He further admitted that he pawned the
televisions. In addition, defendant’s fingerprint was found on the window that was determined to
be the point of entry of the person who entered Bunch’s home. The evidence therefore
unquestionably demonstrated that defendant participated in the home invasion, either as the
principal or as an aider and abettor. Defendant is therefore unable to demonstrate that, but for
the admission of the evidence of his prior convictions, the outcome of the proceeding would have
been different. Accordingly, defendant failed to establish that defense counsel was ineffective
for failing to move to exclude his prior convictions.

                            4. PROSECUTORIAL MISCONDUCT

       Finally, defendant argues that he received ineffective assistance of counsel because
defense counsel at trial failed to object to various instances of alleged prosecutorial misconduct.
We disagree.

       The test for prosecutorial misconduct is whether the prosecutor committed errors that
deprived the defendant of a fair and impartial trial. People v Cooper, 309 Mich App 74, 88; 867
NW2d 452 (2015). A prosecutor’s statements are evaluated in light of the defense arguments
and the relationship to the evidence admitted. People v Seals, 285 Mich App 1, 22; 776 NW2d
314 (2009).



3
  We do not conclude that defense counsel’s performance was deficient, but only that it is highly
likely that the outcome would have been the same had the evidence of the prior convictions been
excluded.


                                                -7-
        Defendant first argues that defense counsel was ineffective for failing to object to the
prosecution’s questions regarding defendant’s failure to assert defenses to the police after
defendant was arrested and given his Miranda warnings. Defendant correctly notes that it is
improper for a prosecutor to comment on a defendant’s invocation of his right to remain silent.
People v Shafier, 483 Mich 205, 212; 768 NW2d 305 (2009). However, a defendant who
knowingly and voluntarily makes post-arrest, post-Miranda warning statements to police can be
questioned about his failure to assert defenses to the police. People v Davis, 191 Mich App 29,
34-35; 477 NW2d 438 (1991). A prosecutor also is permitted to inquire about a defendant’s
silence to rebut a defendant’s claim that he or she told an exculpatory story to police upon arrest.
Shafier, 483 Mich at 212. In this case, defendant did not invoke his right to remain silent, and in
fact, he signed a form waiving his Miranda rights. Thereafter, he talked to police but did not
inform them of Vandenberg’s alleged role in the home invasion. The prosecutor’s subsequent
questions related not to a post-Miranda silence, but rather to defendant’s failure to advise police
of his defense. Thus, any objection that defense counsel might have made to the prosecutor’s
questions would have been meritless, and defense counsel cannot be found ineffective for failing
to make meritless objections. See Ericksen, 288 Mich App at 205.

        Defendant also argues that defense counsel was ineffective for failing to object to the
prosecution’s closing argument when the prosecutor repeatedly claimed that defendant had lied
during his testimony. Prosecutors are generally given great latitude in the arguments they put
forward at trial. People v Fyda, 288 Mich App 446, 461; 793 NW2d 712 (2010). Although a
prosecutor may not suggest that he or she has some special knowledge that the witness is
testifying untruthfully, People v Roscoe, 303 Mich App 633, 649; 846 NW2d 402 (2014), a
prosecutor is permitted to argue from the facts that defendant or the defendant’s witnesses are
not worthy of belief. People v Howard, 226 Mich 528, 548; 575 NW2d 16 (1998). Further, a
prosecutor is not required to confine his or her argument to “the blandest possible terms.”
People v Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007). Here, although the prosecutor
argued that defendant was lying, he did not claim special knowledge that defendant was
testifying untruthfully. The prosecutor therefore did not commit misconduct by arguing that
defendant was lying, and defense counsel was not obligated to raise a meritless objection.

        Finally, defendant argues that defense counsel was ineffective for failing to object to the
prosecution’s suggestion that if defendant believed that Vandenberg’s testimony would bolster
his case, defendant should have called him as a witness. Defendant contends that this improperly
shifted the burden of proof to him. A prosecutor may not imply that a defendant must prove
something or present a reasonable explanation; to do so tends to shift the burden of proof to the
defendant, which is impermissible. Fyda, 288 Mich App at 463-464. For the same reason, a
prosecutor may not comment on a defendant’s failure to present evidence. Id. at 464. The
prosecutor may, however, comment on the weakness of a defendant’s alibi or that the defendant
has failed to call a corroborating witness. People v Holland, 179 Mich App 184, 190-192; 445
NW2d 206 (1989). In doing so, the prosecution is merely pointing out the weakness in a
defendant’s case and is not improperly shifting the burden of proof to the defendant. People v
Shannon, 88 Mich App 138, 145; 276 NW2d 546 (1979).

       In this case, defendant testified that he had helped Vandenberg take the televisions from
the porch of Bunch’s house at Vandenberg’s suggestion, and that he had seen Vandenberg with
the Kindle Fire and the Amazon Fire Stick. Defendant did not call Vandenberg as a witness, but

                                                -8-
during his testimony made an unprompted reference to the prosecution’s failure to call
Vandenberg as a witness. The prosecution, in its closing argument, commented on defendant’s
failure to do the same. We conclude that in doing so, the prosecutor was responding to
defendant’s comment and also commenting upon the weakness of defendant’s alibi and the
failure to call a corroborating witness, which is not misconduct. Holland, 179 Mich App at 190-
192. The prosecution did not improperly shift the burden of proof to defendant. Shannon, 88
Mich App at 145. Accordingly, any objection that defense counsel might have raised against the
prosecution’s statements would have been meritless, and defense counsel was not ineffective for
failure to make a meritless objection. See Ericksen, 288 Mich App at 205.

       Affirmed.



                                                          /s/ Michael J. Riordan
                                                          /s/ Mark T. Boonstra
                                                          /s/ Michael F. Gadola




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