                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    November 12, 2015
               Plaintiff-Appellee,

v                                                                   No. 322787
                                                                    Oakland Circuit Court
SADIE DARLENE BELL,                                                 LC No. 2013-247540-FC

               Defendant-Appellant.


Before: SAWYER, P.J., and K. F. KELLY and FORT HOOD, JJ.

PER CURIAM.

        Defendant was convicted in a jury trial of assault with intent to commit great bodily harm
less than murder, MCL 750.84, and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b.1 She was sentenced to 20 months to 10 years’ imprisonment
for the assault conviction and two years’ imprisonment for the felony-firearm conviction.
Defendant appeals as of right. We affirm.

       Defendant first argues that she was denied her right to effective assistance of counsel
because she was prevented from testifying on her own behalf due to her trial counsel’s failure to
move to preclude the admission of prior bad acts evidence. We disagree.

        Because defendant failed to raise this claim below in a motion for a new trial or a request
for an evidentiary hearing, our review is limited to mistakes apparent from the record. People v
Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). “To demonstrate ineffective assistance of
counsel, a defendant must show that his or her attorney’s performance fell below an objective
standard of reasonableness under prevailing professional norms and that this performance caused
him or her prejudice.” People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013), citing
People v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676 (2011). “To demonstrate
prejudice, a defendant must show the probability that, but for counsel’s errors, the result of the
proceedings would have been different.” Nix, 301 Mich App at 207. “A defendant must meet a



1
  Defendant was charged with assault with intent to murder, MCL 750.83, but was convicted of
the lesser included offense of assault with intent to commit great bodily harm less than murder.


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heavy burden to overcome the presumption that counsel employed effective trial strategy.”
People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).

       Defendant, as a criminal defendant, had a fundamental constitutional right to testify at
trial. US Const, Am XIV; Const 1963, art 1, §§ 17, 20. “Although counsel must advise a
defendant of this right, the ultimate decision whether to testify at trial remains with the
defendant.” People v Bonilla–Machado, 489 Mich 412, 419; 803 NW2d 217 (2011). “[I]f
defendant . . . decides not to testify or acquiesces in his attorney’s decision that he not testify, the
right will be deemed waived.” People v Simmons, 140 Mich App 681, 685; 364 NW2d 783
(1985) (citation and quotations omitted).

        Defendant claims that she did not testify at trial because defense counsel advised her that
the prosecution may seek to question her regarding prior bad acts. Defendant asserts that defense
counsel was, therefore, ineffective for not filing a motion in limine to preclude the prosecutor
from referencing defendant’s prior bad acts. We disagree with defendant’s claim for several
reasons. First, there is no indication that the prosecution planned to introduce evidence of
defendant’s prior bad acts. Not only did the prosecutor state that she would not question
defendant regarding the prior bad acts, which defendant acknowledges in an affidavit, but, more
importantly, the prosecutor did not provide reasonable notice of an intention to admit the
evidence at trial, required pursuant to MRE 404(b). Thus, based on the prosecution’s failure to
provide the required notice along with the prosecution’s assurances not to seek to admit the
evidence, we fail to see how the record supports defendant’s claim that defense counsel should
have filed a motion to preclude the evidence.

         Second, defendant acknowledged to the trial court that she did not want to testify. In
addition, during sentencing, defendant expressly stated that “there were a lot of reasons why
[she] didn’t testify,” not, as she claims on appeal, one, i.e., fear based on her attorney’s advice.
Accordingly, defendant has waived this issue. Simmons, 140 Mich App at 685. Third, defendant
has not overcome the presumption that defense counsel’s advice that she not testify constituted
trial strategy. The decision whether to call defendant as a witness is a matter of trial strategy.
Payne, 285 Mich App at 190. Here, there are a myriad of imaginable reasons why counsel might
have believed defendant should not take the stand. For example, counsel might have believed
that defendant would have been an unbelievable witness or unable to handle cross-examination.
Lastly, we are not convinced that the outcome of the proceedings would have been different had
defendant testified. Nix, 301 Mich App at 207. Defendant gave a recorded interview to police
that was played for the jury. Thus, defendant’s self-defense claim was still presented to the jury
despite the fact that she did not testify. Defendant has not provided any indication as to how her
testimony would have differed from her recorded interview. Additionally, we note that unlike
the recorded interview, her testimony at trial would have been subject to cross-examination,
providing yet another possible trial strategy to support her counsel’s purported advice not to
testify. Payne, 285 Mich App at 190. Accordingly, defendant is not entitled to relief on this
ground.

      Defendant next argues that she was denied her right to a fair trial based on prosecutorial
misconduct. We disagree.



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        To preserve a claim of prosecutorial misconduct, a defendant must contemporaneously
object to the alleged misconduct and ask for a curative instruction. People v Bennett, 290 Mich
App 465, 475; 802 NW2d 627 (2010). Because defendant did not object to prosecutor
misconduct at trial, this issue is not preserved. People v Danto, 294 Mich App 596, 605; 822
NW2d 600 (2011). We review unpreserved claims of prosecutorial misconduct for plain error
affecting substantial rights. People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014).
Error requiring reversal will not be found when a curative instruction could have displaced any
prejudicial effect of the prosecutor’s improper argument. People v Johnigan, 265 Mich App
463, 467; 696 NW2d 724 (2005).

         Defendant first claims that the prosecutor acted improperly when the prosecutor asked the
testifying evidence technician how many times she had been called to a crime scene during her
11-year career. The technician testified “I actually get called -- because we do have to keep
statistics every month, I average about 25 scenes a month, which is about 300 or so scenes a
year.” Defendant claims that this exchange constituted an improper civic duty argument and
improperly referred to crime statistics in order to inflame the jury. After reviewing the record,
we disagree with defendant’s claim. This question and answer was part of a series of questions
and answers regarding the technician’s background and experience collecting evidence from
crime scenes. There is absolutely nothing in the record to support defendant’s arguments, and
defendant mischaracterizes the exchange at issue. Accordingly, we conclude that no error
occurred. Moreover, even if we assume that the conduct described above somehow constituted
prosecutorial misconduct, the alleged errors could have been cured with a curative instruction
and, thus, reversal is not required. Id.

        Defendant also claims that the prosecutor improperly vouched for the credibility of an
expert witness during closing argument. When discussing the medical examiner’s testimony, the
prosecutor stated: “And he said that in his experience based on the 18,000 autopsies done, the
thousand times he’s testified in court, that this stippling pattern around that bullet wound is
consistent with muzzle to skin nine to eleven inches.” According to defendant, this statement
constituted improper bolstering of the expert’s credibility, prejudicing defendant. A prosecutor
may “not vouch for the credibility of his witnesses by suggesting that he has some special
knowledge of the witnesses’ truthfulness.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314
(2009).

        After reviewing the record, we disagree with defendant’s assertion. The prosecutor
simply restated one of the qualifications of the medical examiner who testified as an expert in
forensic pathology. Based on the examiner’s experience, the prosecutor argued, the examiner
believed that the victim was shot from less than one foot away. This testimony substantially
contradicted defendant’s statement that she shot the victim from several feet away. Here, the
prosecutor did nothing more than restate the examiner’s qualifications. At most, this constituted
a comment on the credibility of the witness, and certainly did not suggest that the prosecutor had
any special knowledge of the witnesses’ truthfulness. Id. Further, the trial court unequivocally
instructed the jury that the attorneys’ comments and questions were not evidence. “Jurors are
presumed to follow their instructions, and it is presumed that instructions cure most errors.”
People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011).



                                               -3-
        Defendant next argues that there was insufficient evidence to support her convictions.
Specifically, defendant asserts that the prosecution failed to present sufficient evidence to prove
beyond a reasonable doubt that defendant did not act in self-defense. We disagree. Challenges
to the sufficiency of the evidence are reviewed de novo to “determine whether any rational trier
of fact could have found that the essential elements of the crime were proven beyond a
reasonable doubt.” People v Russell, 297 Mich App 707, 721; 825 NW2d 623 (2012) (citation
omitted). “This Court reviews the evidence in the light most favorable to the prosecution.” Id.

        With the enactment of the Self-Defense Act (SDA), MCL 780.971 et seq., the Michigan
Legislature codified the circumstances in which a person not engaged in the commission of a
crime may use deadly force in self-defense without having the duty to retreat. People v Dupree,
486 Mich 693, 708; 788 NW2d 399 (2010). Pursuant to MCL 780.972(1)(a), deadly force may
be used when “[t]he individual honestly and reasonably believes that the use of deadly force is
necessary to prevent the imminent death of or imminent great bodily harm to himself or herself
or to another individual.” When a defendant introduces evidence of self-defense “from which a
jury could conclude that the elements necessary to establish a prima facie defense of self-defense
exist,” the prosecution must prove beyond a reasonable doubt that the defendant did not act in
self-defense. Dupree, 486 Mich at 709-710.

         We conclude that the prosecution presented sufficient evidence to disprove defendant’s
claim of self-defense. In making her argument, defendant fails to acknowledge the evidence
presented by the prosecution, focusing only on her recorded statement. The evidence presented
at trial, when viewed in a light most favorable to the prosecution, indicated that defendant shot
the victim in the chest while he was unarmed and naked from less than one foot away. To the
extent defendant’s recorded statement contradicts this evidence, “[w]itness credibility and the
weight accorded to evidence is a question for the jury, and any conflict must be resolved in the
prosecution’s favor.” People v McGhee, 268 Mich App 600, 624; 709 NW2d 595 (2005).

       Affirmed.

                                                            /s/ David H. Sawyer
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Karen M. Fort Hood




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