                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 11, 2015
               Plaintiff-Appellee,

v                                                                   No. 320363
                                                                    Kalamazoo Circuit Court
ROBERT LEE CURRY,                                                   LC No. 2013-000631-FC

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ.

PER CURIAM.

        Following a jury trial, defendant was convicted of three counts of armed robbery, MCL
750.529; assault with intent to rob while armed, MCL 750.89; felon in possession of a firearm,
MCL 750.224f; carrying a concealed weapon, MCL 750.239; and four counts of possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court
sentenced defendant to 35 to 60 years’ imprisonment on the armed robbery and assault with
intent to rob while armed convictions, 5 to 10 years’ imprisonment on the felon in possession of
a firearm and carrying a concealed weapon convictions, and two years’ imprisonment on the
felony-firearm convictions. Defendant appeals as of right. We affirm.

       Defendant’s convictions arise out of the March 8, 2013 armed robberies of Christopher
Tucker, Cody Tucker, and Scott Smith at the Alamo Hills apartment complex. At trial,
defendant admitted that he committed the robberies, as well as the assault on Jordan Wallace
with the intent to rob her. He claimed, however, that he committed the crimes under duress.

                                          I. MISTRIAL

        Defendant, through counsel, argues that the trial court erred when it denied his motion for
a mistrial after Christopher testified that he heard a resident of the Alamo Hills apartment
complex say that defendant had robbed him (the resident) three years earlier. We review a trial
court’s decision on a motion for a mistrial for an abuse of discretion. People v Schaw, 288 Mich
App 231, 236; 791 NW2d 743 (2010) (citation omitted). An abuse of discretion exists if the trial
court selects an outcome that falls outside the range of reasonable and principled outcomes. Id.
(citations omitted).




                                                -1-
        On cross-examination, Christopher acknowledged that he told the 911 operator that he
did not know who the person was who robbed him and his companions. At the time, Christopher
had forgotten that defendant had called himself “Mark.” On redirect examination, the prosecutor
asked Christopher whether he even believed that “Mark” was defendant’s name after the
robbery. After the trial court overruled defendant’s hearsay objection, defendant testified that
after the robbery he knew defendant’s name was not “Mark” because residents of the apartment
“were like, ‘His Name’s Rob. That was Rob,’ dah, dah, dah, ‘He robbed me, you know, three
years ago’ . . . .”1

        “A trial court should grant a mistrial only for an irregularity that is prejudicial to the
rights of the defendant and impairs his ability to get a fair trial.” Id. (citation omitted). A
mistrial should be granted only when the prejudicial effect of the error cannot be removed in any
other way. People v Horn, 279 Mich App 31, 36; 755 NW2d 212 (2008) (citation omitted).
Instructions are presumed to cure most errors, and a jury is presumed to follow its instructions.
People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003).

        Christopher’s testimony that a resident of the Alamo Hills apartment complex said that
defendant had robbed him three years earlier was brief and unemphasized. The prosecutor’s
question to Christopher did not alert the jury that it would be hearing about a prior crime
committed by defendant, and the prosecutor did not ask any follow-up questions about the
specifics of what Christopher heard. Furthermore, before it heard Christopher’s testimony
regarding what he heard from residents, the jury already knew that the only purpose for the
testimony was to explain why Christopher did not give the 911 operator the name “Mark.”
When the trial court overruled defendant’s hearsay objection, it told the jury that it was allowing
Christopher to answer the prosecutor’s question “to explain why he might not have done
something.” Under these circumstances, the trial court’s decision that an instruction could cure
the prejudicial effect of the error and, therefore, a mistrial was not warranted, did not fall outside
the range of reasonable and principled outcomes. Schaw, 288 Mich App at 236.

        In reaching this conclusion, we reject defendant’s argument that the trial court’s
instruction was insufficient to cure the alleged prejudice suffered by defendant because the
resident’s statement had no bearing on why Christopher may have believed that “Mark” was not
defendant’s name. The resident’s statement was part of Christopher’s answer regarding why,
when he talked to the 911 operator, he no longer believed that “Mark” was defendant’s name.
The trial court instructed the jury that it was not to consider the statements that Christopher heard
from the residents of the Alamo Hills apartment complex for any reason other than for the very
limited purpose of understanding Christopher’s state of mind, and to not consider the statements
for their truth. Because the jury was instructed that it could not consider the residents’
statements that Christopher heard for their truth, and because a jury is presumed to follow its



1
 Plaintiff has never asserted that evidence of a prior robbery of a resident of the Alamo Hills
apartment complex by defendant was admissible under MRE 404(b).




                                                 -2-
instructions, Abraham, 256 Mich App at 279, the trial court’s cautionary instruction was
sufficient to cure any prejudice suffered by defendant.

                                  II. OPINION TESTIMONY

       Defendant also argues through his attorney that the trial court erred when it allowed
Detective Karen Rivard to testify that, in a telephone conversation between defendant and his
wife, Ashley Jones, there was “obvious coaching” by defendant. We review a trial court’s
evidentiary decisions for an abuse of discretion. People v Unger, 278 Mich App 210, 216; 749
NW2d 272 (2008). An abuse of discretion occurs when the trial court’s decision falls outside the
range of reasonable and principled outcomes. Id. at 217.2

        According to defendant, Rivard’s testimony that there was “obvious coaching” by him in
the telephone conversation was improper because witnesses are prohibited from commenting on
the truthfulness of other witnesses. “It is generally improper for a witness to comment or
provide an opinion on the credibility of another witness, because credibility matters are to be
determined by the jury.” People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007)
(citations omitted). Defendant’s reliance on this rule, however, is misplaced. Rivard was not
asked to comment or provide an opinion on the credibility of either defendant or Jones.

      MRE 701, which permits the admission of lay opinion testimony, People v Fomby, 300
Mich App 46, 48; 831 NW2d 887 (2013), provides:

               If the witness is not testifying as an expert, the witness’ testimony in the
       form of opinions or inferences is limited to those 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.

        The testimony of Rivard, who did not testify as an expert, that there was “obvious
coaching” in the telephone conversation met the requirements of MRE 701. First, the testimony
was rationally based on the perception of the witness. Rivard testified that she heard the
telephone conversation between defendant and Jones. Second, at issue was the credibility of
defendant and Jones. They were the only two witnesses who gave testimony supporting the
duress defense. Rivard’s testimony that there was “obvious coaching” by defendant regarding
what Jones should say to defense counsel about statements made by “Slug” was helpful to a
determination of whether defendant and Jones were credible witnesses. The trial court did not
abuse its discretion in allowing Rivard’s testimony. Unger, 278 Mich App at 216.


2
 We find no merit to plaintiff’s argument that this issue is unpreserved because defendant did
not object after Rivard testified that there was “obvious coaching.” An objection must be timely,
and an objection is timely if it is interposed between the question and the answer. People v
Jones, 468 Mich 345, 355; 662 NW2d 376 (2003). Defendant’s objection was timely; it was
made before Rivard answered the prosecutor’s question.




                                               -3-
                                    III. STANDARD 4 BRIEF

        Defendant argues through submission of his own “brief” that he was denied the effective
assistance of counsel. Because no Ginther3 hearing has been held on defendant’s ineffective
assistance claims, our review is limited to facts on the record. People v Wilson, 242 Mich App
350, 352; 619 NW2d 413 (2000). To establish ineffective assistance of counsel, a defendant
must show that counsel’s performance fell below objective standards of reasonableness and that,
but for counsel’s deficient performance, there is a reasonable probability that the result of
defendant’s trial would have been different. People v Uphaus (On Remand), 278 Mich App 174,
185; 748 NW2d 899 (2008).

        Defendant has abandoned his claim that defense counsel was ineffective for failing to
move to suppress the testimony of Officer Jason Gates. “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 Kelly,
231 Mich App 627, 640-641; 588 NW2d 480 (1998). Defendant has not provided this Court
with legal authority to support a conclusion that Gates’s testimony was subject to suppression.

       Defendant also argues that defense counsel was ineffective with regard to several
witnesses who did not testify, but decisions regarding whether to call witnesses are presumed to
be matters of trial strategy. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004).
The failure to call a witness only constitutes ineffective assistance of counsel if it deprived the
defendant of a substantial defense, id., which is one that might have made a difference in the
outcome of the trial. In re Ayres, 239 Mich App 8, 22; 608 NW2d 132 (1999).

       Defense counsel was not ineffective for failing to subpoena “Ms. Jones,” a witness from
Grand Rapids. According to defendant, “Ms. Jones” told defense counsel that she would be
willing to testify. However, this is not supported by any facts on the record. Defendant has,
therefore, failed to establish the factual predicate for his claim. People v Hoag, 460 Mich 1, 6;
594 NW2d 57 (1999).

        We also reject defendant’s argument that defense counsel was ineffective for failing to
subpoena Heather Sadler. The record establishes that defense counsel did, in fact, subpoena
Sadler. Sadler did not testify at trial, and to the extent that defendant is arguing that defense
counsel was ineffective for failing to call Sadler as a witness, the argument is without merit.
Because the record is silent regarding why Sadler was not called as a witness, defendant has
failed to show that defense counsel’s performance in not calling Sadler fell below objective
standards of reasonableness. Uphaus (On Remand), 278 Mich App at 185. Additionally,
because the record does not contain any facts regarding the proposed testimony of Sadler,
defendant has not shown that defense counsel’s failure to call Sadler as a witness deprived him
of a substantial defense. Dixon, 263 Mich App at 398.


3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).




                                                -4-
       Defendant’s argument that defense counsel was ineffective for not calling Shamirra
Jordan as a witness is also without merit. The record indicates that defense counsel subpoenaed
Jordan; that Jordan refused to comply with a change in time for her testimony; that defense
counsel consulted with defendant regarding Jordan’s refusal to testify at a later time; and that
defendant did not want a bench warrant issued for Jordan’s appearance. Based on her
consultation with defendant, defense counsel asked that the trial court remove Jordan from the
witness list. Defendant has failed to overcome the strong presumption that defense counsel’s
performance constituted sound trial strategy. People v Carbin, 463 Mich 590, 600; 623 NW2d
884 (2001). Defense counsel, who acted in compliance with defendant’s wishes, may have
believed that it was better to forego Jordan’s testimony than force Jordan to appear pursuant to a
bench warrant and risk her being a hostile or uncooperative witness.4

       We also conclude that defense counsel was not ineffective for failing to contact and call
as a witness the manager of the apartment complex where he and Jones used to live. There are
no facts on the record regarding the proposed testimony of the manager. Consequently,
defendant cannot show that defense counsel’s failure to call the manager of the apartment
complex as a witness deprived him of a substantial defense. Dixon, 263 Mich App at 398. The
same holds true for defendant’s argument that defense counsel was ineffective for failing “to get
the 911 recording of the defendant on the days before March 8.” The argument indicates that
defendant called 911 sometime before March 8, 2013, but there are no facts on the record
supporting this indication. Hoag, 460 Mich at 6.

        Defendant also asserts that defense counsel failed to send his telephone records to a
laboratory “so the text messages could be shown as to [defendant’s] truthfulness.” Once again,
however, there are no facts on the record regarding what text messages were on defendant’s
cellular telephone. Accordingly, defendant cannot show that, but for counsel’s alleged deficient
performance, there is a reasonable probability that the result of his trial would have been
different. Uphaus (On Remand), 278 Mich App at 185. Defendant was not denied effective
assistance of counsel.

        Defendant next argues that he was denied his right of confrontation because Smith did
not testify at trial. Because defendant did not raise this issue below, it is unpreserved, People v
Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007), and reviewed for
plain error affecting defendant’s substantial rights, People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999).

       The Confrontation Clause, US Const, Am VI, guarantees a defendant the right to be
confronted by the witnesses against him. People v Henry (After Remand), 305 Mich App 127,


4
 Defendant claims that defense counsel was ineffective for failing to file the paperwork required
by FRCP 26(a)(2)(b) regarding Tera Adams, his counselor. FRCP 26 has no application to the
present case. The Federal Rules of Civil Procedure only apply to proceedings in the federal
district courts. FRCP 1.




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153; 854 NW2d 114 (2014). Implicit in Confrontation Clause jurisprudence is that a witness
must put forth some testimony before a defendant’s right of confrontation comes into play.
People v Gearns, 457 Mich 170, 186-187; 577 NW2d 422 (1998), overruled in part on other
grounds by People v Lukity, 460 Mich 484; 596 NW2d 607 (1999). Smith did not testify at trial,
nor were any out-of-court statements by him admitted into evidence. See Henry (After Remand),
305 Mich App at 153. Accordingly, because Smith did not give any testimony, defendant was
not denied his right of confrontation when Smith did not testify at trial.

        Defendant additionally argues on appeal that the trial court erred when it concluded that
his statements to Adams were hearsay, and when it prohibited him from testifying about what he
told Adams at the March 6, 2013 counseling session. We review a trial court’s evidentiary
rulings for an abuse of discretion. Unger, 278 Mich App at 216.

        “ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
Here, the trial court did not abuse its discretion in concluding that defendant’s statements to
Adams were hearsay. Unger, 278 Mich App at 216. Defendant’s statements to Adams were out-
of-court statements that were offered to prove the truth of the matter asserted. MRE 801(c).

        Defendant has abandoned the issue whether the trial court abused its discretion in
prohibiting him from testifying about what he told Adams on March 6, 2013, as he has not
presented this Court with any legal authority to support his argument. See Kelly, 231 Mich App
at 640-641. And, even if the trial court abused its discretion, it does not affirmatively appear,
after examination of the entire cause, that it is more probable than not that the error was outcome
determinative. Lukity, 460 Mich at 495-496. Nothing on the record indicates that defendant’s
testimony would have been any different than Adams’s testimony about the March 6, 2013
session. In addition, it does not appear that the trial court actually excluded any evidence that
defendant wanted introduced. Defendant wanted the jury to know why he told Adams that he
was experiencing fear and anxiety, and the trial court allowed him to testify what was behind the
fear that he reported to Adams. Any error was harmless.

        Defendant further argues that the trial court erred when it took upon itself the
prosecutor’s job and interrogated him. Because this issue was not raised below, it is
unpreserved, Metamora Water Serv, Inc, 276 Mich App at 382, and reviewed for plain error
affecting defendant’s substantial rights, Carines, 460 Mich at 763.

         Although a defendant is entitled to a neutral and detached trial court, People v Cheeks,
216 Mich App 470, 480; 549 NW2d 584 (1996), a trial court may question witnesses in order to
clarify testimony or elicit additional relevant information, People v Conyers, 194 Mich App 395,
404; 487 NW2d 787 (1992). However, a trial court must exercise caution and restraint to ensure
that its questions are not intimidating, argumentative, prejudicial, unfair, or partial. Id. at 405.
The trial court’s questions were not intimidating, argumentative, prejudicial, unfair, or impartial.
Rather, they were asked to clarify testimony or elicit additional relevant information. There was
no plain error. Carines, 463 Mich at 763.




                                                -6-
        Next, defendant argues that the trial court erred when (1) it permitted evidence of
Christopher’s out-of-court identification of him because the photographic lineup was leading and
unjust, and (2) it excluded from evidence the sheet containing the personal information of all the
men in the lineup. We review a trial court’s evidentiary decisions for an abuse of discretion.
Unger, 278 Mich App at 216. Defendant has abandoned these two issues. He has not presented
this Court with any legal authority to support his claims. Kelly, 231 Mich App at 640-641.
Regardless, even if there were errors, the errors were harmless. Defendant presented a duress
defense, which required him to (and he did several times) admit that he committed the charged
crimes. See People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). Because defendant
admitted that he committed the armed robberies, any plain error that may have occurred when
Christopher and Rivard testified about Christopher’s out-of-court identification did not affect the
outcome of the proceedings. Carines, 460 Mich at 763.

       Defendant argues that Gates violated his Miranda5 rights when Gates interviewed him on
May 26, 2013. Because this issue was never raised before the trial court, it is unpreserved,
Metamora Water Serv, Inc, 276 Mich App at 382, and reviewed for plain error affecting
defendant’s substantial rights, Carines, 460 Mich at 763.

        In Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), the United
States Supreme Court held that an accused, pursuant to the Fifth Amendment right against self-
incrimination, must be given a series of warnings before being subjected to custodial
interrogation. People v Elliott, 494 Mich 292, 301; 833 NW2d 284 (2013). Defendant has
abandoned the issue whether his Miranda rights were violated. See Kelly, 231 Mich App at 640-
641 The only legal authority that defendant cites in support of his claim are three cases that were
decided by the United States Supreme Court before Miranda was decided in 1966.

        Regardless, an accused is not entitled to Miranda warnings unless he is subject to
custodial interrogation. Elliott, 494 Mich at 302. Although defendant was an inmate at the
county jail when he was interviewed by Gates, an accused’s imprisonment, by itself, is not
sufficient to constitute custody for Miranda purposes. Howes v Fields, 565 US ___, ___; 132 S
Ct 1181, 1190; 182 L Ed 2d 17 (2012). “When a prisoner is questioned, the determination
should focus on all the features of the interrogation. These include the language that is used in
summoning the prisoner to the interview and the manner in which the interrogation is
conducted.” Id. at 1192 (citation omitted). Because the record is silent regarding many of the
features of Gates’s interview of defendant, including where the interview took place at the
county jail, how long the interview lasted, and whether Gates told defendant that he was free to
leave, the record prohibits us from reaching a conclusion that defendant was in custody for
purposes of Miranda when Gates interviewed him. Thus, there was no plain error in the
admission of defendant’s statements to Gates. Carines, 460 Mich at 763.




5
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).




                                                -7-
        Finally, defendant argues that his Sixth Amendment right to be tried by a jury drawn
from a fair cross section of the community was violated because there were only two African-
Americans in the jury venire and one of them was dismissed by the trial court.6 People v Bryant,
491 Mich 575, 595; 822 NW2d 124 (2012). Because defendant did not raise this issue before the
trial court, it is unpreserved, People v Eccles, 260 Mich App 379, 385; 677 NW2d 76 (2004), and
reviewed for plain error affecting defendant’s substantial rights, Carines, 460 Mich at 763.

        Although African-Americans are considered a distinctive group in the community,
People v Williams, 241 Mich App 519, 526; 616 NW2d 710 (2000), there is no evidence in the
record regarding jury venires in general in Kalamazoo County. “Merely showing one case of
alleged underrepresentation does not rise to a ‘general’ underrepresentation that is required for
establishing a prima facie case.” People v Howard, 226 Mich App 528, 533; 575 NW2d 16
(1997) (citation omitted). There is likewise no evidence in the record that the alleged
underrepresentation was due to systematic exclusion, i.e., “an exclusion resulting from some
circumstances inherent in the particular jury selection process used.” Id. (citations omitted). “It
is well settled that systematic exclusion cannot be shown by one or two incidents of a particular
venire being disproportionate.” Williams, 241 Mich App at 526 (citation omitted). Accordingly,
defendant’s argument is without merit.

       Affirmed.

                                                            /s/ Joel P. Hoekstra
                                                            /s/ Peter D. O’Connell
                                                            /s/ Christopher M. Murray




6
  Nothing in the lower court record substantiates that only two African-Americans were in the
jury venire and that one of them was dismissed by the trial court. Defendant has, therefore,
failed to fulfill his burden, as the appellant, to furnish this Court with a record to verify the
factual basis of an argument upon which reversal is predicated. People v Elston, 462 Mich 751,
762; 614 NW2d 595 (2000). Nonetheless, for purposes of this appeal, we will assume that
defendant’s assertions are correct.




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