                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 5, 2015
              Plaintiff-Appellee,

v                                                                  No. 318708
                                                                   St. Joseph Circuit Court
DARRELL ALLEN STALLARD,                                            LC No. 13-018553-FC

              Defendant-Appellant.


Before: BECKERING, P.J., and BORRELLO and GLEICHER, JJ.

PER CURIAM.

       Defendant Darrell Allen Stallard appeals as of right his conviction for armed robbery,
MCL 750.569. On September 27, 2013, the trial court sentenced defendant as a second-offense
habitual offender, MCL 769.10, to 20 to 50 years’ imprisonment. For the reasons set forth in this
opinion, we affirm the conviction and sentence of defendant.

                                           I. BACKGROUND.

        On January 8, 2012, around 7:00 p.m., a man entered an Admiral Gas Station in the City
of Sturgis wearing a ski mask, gloves, and a dark coat, wielding a kitchen knife and demanded
all of the money in the register. The man stole approximately $230. After fleeing the gas
station, the man was seen on video footage and by witnesses throwing “something” into a trash
can behind the Manpower Building. Police arrived at the scene within minutes of the robbery
with a canine unit, which tracked the man to a deserted home. Witnesses led police to a trash
can in which they found a large knife, a ski mask, and a brown work glove. Another brown work
glove had been collected about two or three feet from the outside of the trash can. Testing was
inconclusive as to a DNA match on the ski mask,1 but defendant was found to be the major
donor on the left and right brown work gloves found near the scene of the robbery.



1
  David Hayhurst, an employee of the Michigan State Police was qualified as an expert in the
field of serology and DNA, testified at trial that defendant was not a major donor of the DNA
found on the ski mask. However, Hayhurst testified that “there may be similar types visible to
[defendant’s] profile.


                                               -1-
        On October 23, 2012, Sturgis Police Detective Sergeant Geoffrey Smith interviewed
defendant’s friend Michael Miller.2 Smith interviewed Miller because Miller indicated he had
information regarding the armed robbery. Based on Miller’s interview, defendant became the
prime suspect for the armed robbery. Miller testified at trial that he spoke with defendant on
three separate occasions. He spoke with defendant in January, but they did not discuss the armed
robbery. In April, 2012, Miller and defendant talked about the armed robbery of the Admiral
Gas Station. Miller testified that defendant told him he was “worried about the DNA that could
be found in the gloves or the ski mask and he wanted to know my opinion on it . . . .” Defendant
described the robbery in detail to Miller:

         He said he had a ski mask on and a pair of gloves and he had a knife. He said he
         went in and demanded the money, and he got the money. He took off running
         from the gas station and he ran behind the – old Manpower building and he was
         hiding. He heard sirens and the – there was some people sitting on a porch and
         they – they yelled to him and told him he better take off because the cops are
         coming, so he ran. He said that he threw the knife and the gloves and the mask in
         a – in a trash bin behind the building.

         Defendant also told Miller that he stole about $230.

         Wendy Shenefield, defendant’s former girlfriend and Lola Chupp, defendant’s aunt,
testified for defendant at trial and contradicted Miller’s testimony that defendant robbed the gas
station. Shenefield dated defendant in January of 2012 and testified that she saw defendant about
10:30 or 11:00 p.m. on the date of the robbery. When Shenefield saw defendant, he was wearing
a grey coat with a red stripe. Shenefield testified that defendant was acting normally, and that
she did not see defendant with any extra money. Chupp testified that defendant was living with
her in January 2012 and that defendant’s behavior appeared to be normal and that defendant
[usually] wore a grey coat with a red stripe. She also testified that she and defendant were close
and he would often confide in her when something was bothering him. According to Chupp,
defendant never confided that he robbed the Admiral Gas Station.

        The jury found defendant guilty of armed robbery and the trial court sentenced defendant
as stated above.

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL.

        On appeal, defendant argues that his trial counsel was ineffective. Defendant preserved
the issue by filing a motion to remand the case for a Ginther3 hearing which was granted by this




2
  Miller was arrested in August 2012 for operating a methamphetamine laboratory. In exchange
for Miller’s testimony, his 20 year felony sentence was reduced to 10 years.
3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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Court.4 People v Sabin (On Second Remand), 242 Mich App 656, 658; 620 NW2d 19 (2000).
At the Ginther hearing, defendant called Gary Boyd Jr., Christine Featherstone, and his trial
counsel Christine Everson Yancey. Boyd testified that he and defendant grew up together and
that when Boyd was in jail, he “bumped” into defendant. Defendant showed him the
“paperwork” about Michael Miller’s statement to the police. James Miller, Michael Miller’s
brother, was also present when defendant and Boyd were talking about Michael’s statement.
Boyd testified that James stated, relative to Michael’s statement, “that’s pretty bogue [sic]
because it’s not even true because I was sitting there listening to him and my mother talk about
how he would do anything to get out of jail and that he was just going to feed the copes [sic] a
line of bull crap and, hopefully, take it.”

        Featherstone testified about the whereabouts of defendant on January 8, 2012.
Featherstone indicated that she and defendant were “hanging out” when she received a text from
her friend indicating that the Admiral Gas Station had been robbed. Defendant was with
Featherstone for the entire evening on January 8. Featherstone could not remember the exact
time of the text, but she did remember that it was dark out. Defendant did not leave
Featherstone’s apartment and she testified that defendant was “pretty much” living with her.
According to Featherstone, she did not come forward with the whereabouts of defendant on
January 8 because she did not know defendant had been arrested.

        Yancey testified that she was not contacted by either Featherstone or Boyd, but defendant
did give Yancey Featherstone’s name and indicated she was an alibi witness. Yancey attempted
to locate Featherstone, but was unable to because she had been charged in a criminal matter and
was in jail. Yancey mailed a subpoena to Featherstone’s apartment, but Featherstone did not
return the subpoena.

       Yancey had James Miller’s name and he was present in the court during defendant’s
case-in-chief. At trial, at the close of defendant’s case-in-chief, Yancey explained why she was
not going to call Michael’s brother James Miller. She stated to the trial court:

       Your Honor, I had received a letter from James Miller regarding that [James] had
       information about the truthfulness of his brother Michael’s testimony that he had
       given to officers and also to the prosecutor’s office with regard to a plea deal he
       got last fall. He felt that he had to write the letter because of what his brother was
       doing.

       In interviewing him just now and talking to him in detail and showing him the
       letter and refreshing his memory on the letter, he has now said that all
       conversations that occurred were when his brother was incarcerated in our jail and
       the calls were coming into his mother’s home, which Mr. James Miller is paroled
       to, and that the conversations were coming through his mother and he never had



4
 People v Darrell Allen Stallard, unpublished order of the Court of Appeals, entered June 18,
2014 (Docket No. 318708).


                                                -3-
       any direct conversation with his brother Michael whatsoever; that his mother was
       saying that Michael was relaying that he was getting the deal he needed to get.

       So James has no direct – no direct testimony that he can give from conversations
       with Michael, and I think it’s just at this point going to confuse the jury. None of
       it is going to be able to come in and . . . .

        At the Ginther hearing, Yancey testified that she decided not to call James as a witness
because she determined that James’ testimony would be hearsay and would have confused the
jury. James’ proposed testimony was that Michael lied about having a conversation with
defendant regarding the armed robbery. Yancey learned at trial that James did not have a direct
conversation with Michael, but rather the information was relayed to him by his mother, who had
a conversation with Michael on the telephone. Yancey admitted that she did not make an effort
to obtain the jail telephone records between Michael and his mother and also admitted that the
telephone records would have been helpful to defendant if Michael had in fact told his mother
that he lied to the police about defendant. Defendant never indicated that Boyd could be a
potential witness, and Yancey only learned of Boyd’s name because of defendant’s motion to
remand for a Ginther hearing.

        Anna Rohrer, a clerk with the Saint Joseph County prosecutor’s office, testified that she
is in charge of sending out subpoenas for trials. In this case, Yancey requested that Featherstone,
James Miller, Schoenfeld, and Chupp be subpoenaed. Rohrer received the subpoena “mailers”
back from James Miller and Schoenfeld, but she did not receive a mailer back from Featherstone.
After hearing the testimony, the trial court denied defendant’s motion for a new trial and this
appeal then ensued.

        To demonstrate ineffective assistance of counsel, a defendant must show that trial
counsel’s performance was deficient (i.e. objectively unreasonable), and that there exists “a
reasonable probability that, but for counsel’s error, the result of the proceeding would have been
different.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001); People v Pickens, 446
Mich 298, 303; 521 NW2d 797 (1994).

        Defendant contends that his trial counsel was ineffective for failing to call James Miller
as a witness and for failing to admit into evidence a written memorandum prepared by James that
impeached Michael Miller’s testimony. Defense counsel’s decision to not call James as a
witness is presumed to be sound trial strategy. People v Russell, 297 Mich App 707, 716; 825
NW2d 623 (2012). To overcome this presumption, defendant has to show he was deprived of a
substantial defense. Id. Defense counsel stated at trial and testified at the Ginther hearing that
she decided not to call James because she determined that James’ testimony would be hearsay
and the testimony would have confused the jury. Hearsay is an out-of-court statement offered to
show the truth of the matter asserted. MRE 801(c). “Hearsay is not admissible except as
provided” by the rules of evidence. MRE 802. James’ testimony would have included double
hearsay. James’ mother was told by Michael that he lied to police about talking with defendant
regarding the armed robbery. This is an out-of-court statement made by Michael offered to show
the truth of the matter asserted – Michael lied to police. The second hearsay statement was
James’ mother telling James that Michael lied to police. Likewise, this is an out-of-court


                                                -4-
statement made by the mother offered to show the truth of the matter asserted – Miller lied to
police. James’ proposed testimony in this regard was inadmissible hearsay. MRE 802.

        Similarly, James’ written statement is an out-of-court statement offered to show the truth
of the matter asserted – Miller lied about talking with defendant regarding the armed robbery.
See People v Jenkins, 450 Mich 249, 256; 537 NW2d 828 (1995). The written memorandum
was inadmissible under MRE 802, and it fails to fit any of the exceptions listed in MRE 803.
Accordingly, trial counsel was not objectively deficient for failing to call James as a witness or
to present James’ written memorandum.

        Defendant also contends that his trial counsel was ineffective for failing to timely file a
complete witness list and failing to interview and call Boyd and Featherstone as potential
witnesses at trial. At the Ginther hearing, trial counsel testified that she was not made aware of
Boyd as a potential witness before trial. “Counsel cannot be found ineffective for failing to
pursue information that his client neglected to tell him.” People v McGhee, 268 Mich App 600,
626; 709 NW2d 595 (2005). Accordingly, the record supports that trial counsel was not
objectively deficient for failing include Boyd on the witness list, interview him, or call him as a
witness.

        With regard to Featherstone, defendant contends that she was an alibi witness, and had
she been called at trial, she would have testified that defendant was with her all night on January
8. “An attorney’s refusal to knowingly assist in the presentation of perjured testimony is not
only consistent with his ethical obligations, but cannot be the basis of a claim of ineffective
assistance of counsel.” People v Toma, 462 Mich 281, 303 n 16; 613 NW2d 694 (2000). Here,
Featherstone’s proposed testimony appears somewhat contradictory to the testimony of another
witness, Wendy Shenefield, who testified that she saw defendant on the night of the robbery.
While the record established that Shenefield saw defendant at a “neighbor’s” apartment, and
Shenefield and Featherstone live in the same apartment building, the record does not establish
that Shenefield saw defendant at Featherstone’s apartment. Defendant must establish the factual
predicate for his ineffective assistance of counsel claim. People v Hoag, 460 Mich 1, 6; 594
NW2d 57 (1999). Defendant did not establish that Featherstone’s testimony was complimentary
to Shenefield’s and not contradictory. Thus, on this record we cannot conclude that defendant
met his burden of showing that defense counsel was objectively deficient for failing to locate,
interview, and call Featherstone as a witness at trial.

        However, even if we were to conclude that trial counsel was ineffective by failing to call
Featherstone, defendant has failed to show “the existence of a reasonable probability that, but for
counsel’s error, the result of the proceeding would have been different.” People v Carbin, 463
Mich 590, 600; 623 NW2d 884 (2001), reh den 464 Mich 1212 (2001) (citation omitted).
Notwithstanding Featherstone’s testimony, the evidence against defendant was convincing.
Defendant was the major donor of DNA in both gloves found in or near the trash can where
witnesses testified defendant ran to after the robbery. Michael Miller testified that defendant
described the armed robbery in detail to him, including the clothes that were worn and the
amount of money that was actually stolen. The clerk at the gas station corroborated Michael’s
story in respect to the clothing worn by defendant during the armed robbery. Consequently, all
of the evidence at trial places defendant outside of Featherstone’s apartment. When
Featherstone’s proposed testimony is viewed in light of the evidence that was produced at trial,

                                                -5-
we cannot find that a reasonable probability that if defense counsel called Featherstone as a
witness, the result of the proceeding would have been different. Accordingly, defendant is not
entitled to relief on this issue.

                                           III. OV 4.

        Next, defendant argues that he is entitled to resentencing because the trial court
erroneously scored 10 points for offense variable OV 4. “Under the sentencing guidelines, the
circuit court’s factual determinations are reviewed for clear error and must be supported by a
preponderance of the evidence. Whether the facts, as found, are adequate to satisfy the scoring
conditions prescribed by statute, i.e., the application of the facts to the law, is a question of
statutory interpretation, which an appellate court reviews de novo.” People v Hardy, 494 Mich
430, 438; 835 NW2d 340 (2013).

        OV 4 of the sentencing guidelines addresses psychological injury to the victim. MCL
777.34. A score of 10 points is warranted for OV 4 if the victim suffers “[s]erious psychological
injury requiring professional treatment.” MCL 777.34(1)(a). “[T]he fact that treatment has not
been sought is not conclusive.” MCL 777.34(2). “There must be some evidence of
psychological injury on the record to justify a 10–point score.” People v Lockett, 295 Mich App
165, 183; 814 NW2d 295 (2012). “The trial court may [however] rely on reasonable inferences
arising from the record evidence to sustain the scoring of an offense variable.” People v Earl,
297 Mich App 104, 109; 822 NW2d 271 (2012). The clerk testified that she was scared, could
not remember all of the details of the robbery, and she was concerned about her kids and
defendant harming her with the knife. Police officers who responded to the scene of the robbery
described the victim as “shaken up.” The reasonable inference drawn from the evidence was that
the clerk was put in fear during the armed robbery. See People v Apgar, 264 Mich App 321,
329; 690 NW2d 312 (2004) (finding the record supports a score of 10 points for OV 4 when the
victim testifies to being in fear during the event in question). This testimony constitutes an
almost mirror image to that which this Court considered in Earl. In Earl, this Court found
evidence that the bank teller who was robbed reported that she was “nervous and scared during
the robbery.” Id. at 110. This Court in Earl held that such evidence “adequately supports the
trial court’s assessment of 10 points for OV 4. Id. Accordingly, the trial court did not
erroneously score OV 4.

                                  IV. STANDARD 4 BRIEF.

        Next, defendant argues that his statutory right to a speedy trial, MCL 780.131, was
violated. We review de novo a violation of defendant’s statutory right to a speedy trial. People v
McLaughlin, 258 Mich App 635, 643; 672 NW2d 860 (2003). A criminal defendant, who is
incarcerated, is entitled to the commencement of trial within 180 days after the Department of
Corrections (DOC) delivers to the prosecution notice that the defendant is incarcerated and
requests disposition of the pending charges. MCL 780.131. The 180-day rule is set forth in
MCL 780.131:

       (1) Whenever the department of corrections receives notice that there is pending
       in this state any untried warrant, indictment, information, or complaint setting
       forth against any inmate of a correctional facility of this state a criminal offense

                                               -6-
       for which a prison sentence might be imposed upon conviction, the inmate shall
       be brought to trial within 180 days after the department of corrections causes to be
       delivered to the prosecuting attorney of the county in which the warrant,
       indictment, information, or complaint is pending written notice of the place of
       imprisonment of the inmate and a request for final disposition of the warrant,
       indictment, information, or complaint. The request shall be accompanied by a
       statement setting forth the term of commitment under which the prisoner is being
       held, the time already served, the time remaining to be served on the sentence, the
       amount of good time or disciplinary credits earned, the time of parole eligibility
       of the prisoner, and any decisions of the parole board relating to the prisoner. The
       written notice and statement shall be delivered by certified mail.

MCL 780.133 requires dismissal with prejudice if a prisoner is not brought to trial within the
180-day time limit. The Michigan Court rules have also codified the 180-day rule at MCR
6.004(D).

        The 180-day rule applies to “any untried charge against any prisoner [w]henever the
Department of Corrections receives notice of that charge.” People v Williams, 475 Mich 245,
255; 716 NW2d 208 (2006) (quotations and citation omitted). Before the 180-day rule is
triggered, the DOC “must deliver a written notice of incarceration and request for disposition “to
the prosecuting attorney of the county in which the warrant, indictment, information, or
complaint is pending ....” Id. at 256, citing MCL 780.131(1). Here, MCL 780.131 applies to
defendant because he was a prisoner at the Michigan Department of Corrections (MDOC), there
were pending charges, and the MDOC received notice of the pending charges. Id. Thus, the
180-day rule applies to defendant. The prosecutor received notice of defendant’s incarceration
and a departmental request for final disposition of the pending charges on July 17, 2013;
defendant’s trial commenced on August 12, 2013. Accordingly, defendant’s statutory right to a
speedy trial was not violated.

       Next, defendant argues that the prosecution, during its closing argument,
mischaracterized the DNA evidence presented at trial. Unpreserved claims of prosecutorial
misconduct are reviewed for plain error affecting a defendant’s substantial rights. People v
Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).

       Prosecutorial misconduct is considered on a “case-by-case basis by examining the record
and evaluating the remarks in context, and in light of defendant’s arguments.” People v Thomas,
260 Mich App 450, 454; 678 NW2d 631 (2004). “Although a prosecutor may not argue facts not
in evidence or mischaracterize the evidence presented, the prosecutor may argue reasonable
inferences from the evidence.” Watson, 245 Mich App at 588.

      Defendant argues that the prosecutor mischaractized the DNA evidence in his closing
remarks. In the prosecutor’s closing argument, he stated:

              Then you look at the ski mask. And you heard the expert testify again that
       the more movement, the more stuff you have, the more skin is going to fall into it.

                                               ***

                                               -7-
              So you have a mask that presumably was put on right before [defendant]
       entered the store. Puts it on, goes in, “Give me your knife,” – or, “Give me your
       money,” with the knife. Runs off, runs around, takes the hat off, dumps it in the
       trash. Doesn’t wipe his face, doesn’t do this, that or the other, like he’s squeezing
       his hands, takes it off.

                                                ***

               We know he wasn’t the major donor there, but it’s very reasonable to
       believe that he took it from somebody. He found it, he borrowed it. And what the
       expert testified to was there were portions of the DNA that could potentially be
       linked to [defendant] as the minor donor.

                                                ***

              And in the small time he had it on, that’s a reasonable presumption, is that
       he didn’t leave as much DNA on that as he did the gloves. But he was moving
       around all the time, that he was sweating. He was nervous.

        As previously noted, Hayhurst, the DNA expert testified that defendant could not be
excluded or included as a donor to the DNA found on the ski mask. The prosecution did not
mischaracterize the evidence by stating that defendant’s DNA could potentially be linked to the
ski mask. Moreover, Hayhurst testified that more DNA evidence will be left behind if the person
has an “increased respiration rate.” A reasonable inference is that defendant left behind DNA
evidence on the ski mask because the robber was seen running away from the gas station. The
prosecution, in its closing argument, argued the evidence and the reasonable inferences drawn
therefrom. On the record, no plain error exists because the comments were proper and the
prosecution did not mischaracterize the DNA evidence. Id. Additionally, even assuming there
was plain error, reversal is not warranted. The prosecutor’s statement regarding the DNA
evidence was isolated and brief in comparison to the rest of his closing argument. See Unger,
278 Mich App at 239 (stating a prosecution’s improper remarks are not grounds for reversal
when they are isolated and brief). Finally, the trial court specifically instructed the jury that it
must decide the case based on the evidence, and the lawyers’ arguments are not evidence.
People v Mette, 243 Mich App 318, 330; 621 NW2d 713 (2000) (“As a general rule, juries are
presumed to follow their instructions”). Thus, there is no error requiring reversal.

        Defendant also argues that his counsel was ineffective for failing to object to the
prosecution’s mischaracterization of DNA evidence. This issue is not properly before this Court
because it was not raised in the statement of questions presented. MCR 7.212(C)(5); People v
Miller, 238 Mich App 168, 172; 604 NW2d 781 (1999). Moreover, the prosecutor did not
mischaracterize the DNA evidence, and defense counsel does not have an obligation to make a
meritless objection. People v Mesik (On Recon), 285 Mich App 535, 543; 775 NW2d 857
(2009).

       Next, defendant contends that the trial court erred when it allowed the jury to view the
admitted exhibits during deliberations. Unpreserved errors are reviewed for plain error affecting
a defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

                                                -8-
Defendant has abandoned this issue because he fails to cite to any relevant authority. “An
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment with little or no
citation of supporting authority.” People v Payne, 285 Mich App 181, 195; 774 NW2d 714
(2009). Nevertheless, we have reviewed the issue and conclude that the trial court did not
plainly err when it allowed the jury to view the exhibits during deliberations. MCR 2.513(O).

       Affirmed.




                                                         /s/ Jane M. Beckering
                                                         /s/ Stephen L. Borrello
                                                         /s/ Elizabeth L. Gleicher




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