                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    August 16, 2016
               Plaintiff-Appellee,

v                                                                   No. 326805
                                                                    Wayne Circuit Court
MARIO KEEREAM JACKSON,                                              LC No. 14-006836-FH

               Defendant-Appellant.


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

PER CURIAM.

     Defendant appeals as of right his jury convictions of felon in possession of a firearm,
MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. We affirm.

        In the early morning hours of July 25, 2014, defendant was standing in the middle of a
street with several other people and was holding a bottle of Remy Martin. An officer riding in
the front passenger seat of a fully marked Detroit Police Department (DPD) scout car saw
defendant spot the scout car and then walk over to an occupied parked car, remove a handgun
from his waistband, and drop it through the car’s open rear window. The officer then got out of
the scout car and approached defendant. The gun—which was loaded—was recovered and
defendant, a felon, was arrested. Subsequently, a discovery order was entered directing the
production of any scout car video tape existing with regard to this arrest. When no video tape
was produced, defendant filed a motion to dismiss the charges for failure to preserve evidence.

        At the hearing on defendant’s motion, the officer in charge of the case, Detective
Matthew Van Raaphorst, testified that he received the discovery order for any scout car video
and submitted a request to the Technical Services Bureau, which is in charge of retrieving all
video from the scout cars. The Technical Services Bureau responded that the requested scout car
video did not exist. Van Raaphorst explained that video from a scout car is stored for a
particular period of time depending on what triggered the recording, such as opening the rear car
door, activating the overhead lights, and activating the officers’ body microphones. If a certain
trigger did not cause activation, the video may be kept for 24 to 48 hours before it is
automatically deleted. But if a certain trigger did activate the recording, the video could be kept
for 30 to 90 days. During cross-examination, Van Raaphorst admitted that the memorandum



                                                -1-
from Technical Services stated that there was no scout car video for the date of July 24, 2014, at
12:35 p.m., but the actual incident occurred on July 25, 2014, at 12:35 a.m.

        The trial court denied defendant’s motion to dismiss, holding that defendant failed to
show either that the video tape would have been favorable to the defense or that the police acted
in bad faith in failing to preserve this evidence.

        On appeal, defendant argues that his motion to dismiss should have been granted because
the efforts of the police and prosecution to comply with the discovery order concerning any
video tape from the scout car showed bad faith and/or gross negligence, resulting in the
destruction of potentially exculpatory evidence. Defendant further contends that the prejudice to
him was accentuated by the prosecutor’s impermissible and unsupported factual statement during
rebuttal argument that, had the video been properly preserved and presented, it would have
shown defendant in possession of a firearm. We disagree with both arguments.

        We review for an abuse of discretion a trial court’s ruling on a motion to dismiss for
discovery violations. People v Banks, 249 Mich App 247, 252; 642 NW2d 351 (2002); People v
Davie (After Remand), 225 Mich App 592, 597-598; 571 NW2d 229 (1997). An abuse of
discretion occurs when the trial court’s decision falls outside the range of reasonable and
principled outcomes. People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). We
review the trial court’s underlying factual determinations for clear error. People v Tracey, 221
Mich App 321, 323; 561 NW2d 133 (1997). “Clear error exists if the reviewing court is left with
a definite and firm conviction that the trial court made a mistake.” People v Armstrong, 490
Mich 281, 289; 806 NW2d 676 (2011).

        “‘[T]he suppression by the prosecution of evidence favorable to the accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or the bad faith of the prosecution.’” Arizona v Youngblood, 488 US 51, 55; 109
S Ct 333; 102 L Ed 2d 281 (1988), quoting Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10
L Ed 2d 215 (1963). The defendant has the burden to show that the evidence was potentially
exculpatory and was actually withheld by the prosecution. People v Johnson, 197 Mich App
362, 365-366; 494 NW2d 873 (1992). However, the standard under Brady regarding the
government’s failure to disclose or produce evidence does not similarly apply to the
government’s failure to preserve evidence.

               The Due Process Clause of the Fourteenth Amendment, as interpreted in
       Brady, makes the good or bad faith of the State irrelevant when the State fails to
       disclose to the defendant material exculpatory evidence. But we think the Due
       Process Clause requires a different result when we deal with the failure of the
       State to preserve evidentiary material of which no more can be said then it could
       have been subjected to tests, the results of which might have exonerated the
       defendant. [Youngblood, 488 US at 57.]

Unless the defendant can demonstrate bad faith, the State’s failure to preserve potentially useful
evidence does not constitute a denial of due process. Id. at 58. See also People v Heft, 299 Mich
App 69, 79; 829 NW2d 266 (2012).


                                               -2-
        In this case, a discovery order was entered directing the production of any scout car video
tape existing with regard to defendant’s arrest and no video tape existed to produce. But even if
it did exist, it could not have shown the key events—namely, defendant removing a handgun
from his waistband and dropping it through the open rear window of a parked car. Thus, the
video tape could not have been exculpatory. That is, a police officer observed defendant remove
a gun from his waistband and drop it through the rear window of a parked car while patrolling
the area. Because the recording system in the scout car was not triggered to activate at that
time—either by the opening of a scout car door or because the overhead oscillating lights were
turned on—defendant’s alleged actions would not have been videotaped. Thus, defendant could
not show that his due process rights were violated because the prosecution withheld potentially
exculpatory evidence by not producing the video tape. See Johnson, 197 Mich App at 365.

         Further, defendant did not demonstrate bad faith with regard to the failure to preserve any
video tape recording. See Heft, 299 Mich App at 79. There is no evidence showing that the
DPD’s routine destruction of the video footage occurred despite knowledge of any potential
exculpatory value to defendant. Such automatic procedures to clear police department storage
space alone do not constitute bad faith. See Johnson, 197 Mich App at 365; People v Albert, 89
Mich App 350, 352; 280 NW2d 523 (1979). Moreover, it does not appear that Detective Van
Raaphorst had any motive not to produce the video tape. He was not involved in defendant’s
arrest. Nor is there any evidence that the Technical Services Bureau had reason not to search for
or produce the correct video. While the trial court noted that there was “a lot of sloppiness” with
regard to the video tape, the court viewed the evidence and specifically refused to infer bad faith
in that regard. See MCR 2.613(C). Therefore, the trial court properly denied defendant’s motion
to dismiss premised on the claim that he was denied due process by the failure to preserve the
video tape. See Heft, 299 Mich App at 79.

        Defendant also seems to claim that the prosecutor committed misconduct during his
rebuttal argument by making a statement of fact to the jury that was unsupported by the evidence
with regard to the missing video tape. However, prosecutorial comments must be read as a
whole and evaluated in light of defense arguments. People v Brown, 279 Mich App 116, 135;
755 NW2d 664 (2008). At trial, defense counsel raised the issue of the missing video tape
during closing argument:

       [A] video would have backed up the story. A video would have been great. Even
       if, like the officers testified, maybe the camera wasn’t working when they came
       down the street, when they allegedly saw Mr. Jackson put the gun in the car.
       Okay. But it triggers when the lights are turned on, which Officer Washington
       said happened, or when the back doors open, like when Officer Monti jumped out.
       So we should have some video then. And then if it triggered when the back door
       opened, then the video would have started as soon as they pulled up. That video,
       had the police been telling the truth, probably would have backed up their entire
       story, or maybe it didn’t, and that’s why that video is not here.

The prosecutor responded in rebuttal argument:

       In this particular case I would have rather enjoyed having a video. Because if we
       had a video that was staring at the scene, you would have seen the defendant walk

                                                -3-
       over, take the gun out and drop the gun in the back seat of the car. And then the
       part that I would have really enjoyed is I can tell you for almost certainty that Mr.
       Jackson still would have taken the stand and still would have tried to come up
       with some reason why he’s not guilty of these offenses. So I would have really
       liked to have it, but alas we did not.

Defendant claims on appeal that the prosecutor’s comments were impermissible. But defense
counsel implied that the police were lying about defendant and, because the video tape would
have exonerated him, it was destroyed. The prosecutor is permitted to respond to such an
accusation and defendant was not denied a fair and impartial trial as a consequence of doing so.
See People v Jones, 468 Mich 345, 353-354; 662 NW2d 376 (2003).

        Next, defendant argues that he was denied the effective assistance of counsel because his
attorney failed to object when the prosecutor made a statement of fact to the jury in rebuttal
argument that was unsupported by the evidence with regard to the failure of the police to
fingerprint the recovered gun. We disagree. Because defendant did not move for a new trial or
request an evidentiary hearing in the trial court, this issue is not preserved and our review is
limited to errors apparent on the record. Heft, 299 Mich App at 80.

        To establish ineffective assistance of counsel, a defendant must show that defense
counsel’s performance fell below an objective standard of reasonableness and there is a
reasonable probability that, but for counsel’s error, the result of the proceeding would have been
different. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012) (citation omitted).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004).

        The gun that was recovered by the police was not tested for fingerprints by the Michigan
State Police (MSP), which tested its operability. The MSP has a policy not to do so if the request
states that the weapon was seized from a suspect’s person, even if the submitting agency requests
fingerprinting. In this case, the forms submitted to the MSP incorrectly stated that the gun was
taken from the suspect’s person so there was no testing for fingerprints.

        In his closing argument, defendant’s trial counsel discussed the lack of fingerprint testing
on the gun as follows:

              Next thing, fingerprints, fingerprints on the gun, none, none. Why?
       Because Officer Lyons -- well, partially, I don’t want to lie, but partially because
       Officer Lyons checked the wrong box. And, granted, the detective said that that
       doesn’t directly pull into it; that he does his own look at it. And he put that the
       gun was observed taking [sic] off of persons. Had he not put that, we could have
       had some fingerprints. We could have had some fingerprints. . . .

In his rebuttal argument, the trial prosecutor also discussed the lack of fingerprint evidence in the
case:
              Fingerprints, look, they weren’t tested by MSP. Go home, write a letter to
       the Michigan State Police . . . . Go ahead and do that, but that is the only evidence


                                                -4-
       that you’ve heard in this trial, okay. You have not heard any evidence that there
       was [sic] fingerprints on the gun.

              You have a lot of gun owners here. Fingerprints cannot be seen on a gun
       or cannot be -- you can handle a gun a hundred times and there would be no
       fingerprints on a gun. It’s different.

               And the bottom line is, look, I’m not an expert. What I just said, don’t
       consider that evidence. What he said -- what the defense attorney said, don’t
       consider that evidence. The only evidence you heard in this particular case is
       from the witness stand, and it says MSP doesn’t test them for prints in this type of
       situation. . . . But the defense attorney basically suggested that because there’s not
       more evidence, okay, even though we’re already beyond a reasonable doubt, that
       should be reason to find the defendant not guilty.

        Again, a prosecutor’s comments must be reviewed in context and a prosecutor is
permitted to respond to defense counsel’s argument. People v Kennebrew, 220 Mich App 601,
608; 560 NW2d 354 (1996). Here, while the prosecutor’s remarks were responsive to defense
counsel’s argument, the remarks also improperly included facts that were not in evidence
regarding whether fingerprints can be obtained from a firearm. However, the prosecutor almost
immediately downplayed his remarks by admitting that he was not a fingerprint expert and told
the jury not to consider his remarks as evidence. Even if defense counsel had objected at this
point, the goal of a defense objection to prosecutorial remarks is a curative instruction which
would have paralleled the prosecutor’s own statements. See People v Stanaway, 446 Mich 643,
687; 521 NW2d 557 (1994). And the trial court did later instruct the jury that the attorneys’
arguments were not evidence. Under the circumstances of this case, there is no reasonable
probability that, but for defense counsel’s failure to object to the improper argument, the result of
the proceeding would have been different. See Vaughn, 491 Mich at 669. Thus, defendant’s
ineffective assistance of counsel claim is without merit.

       Affirmed.



                                                              /s/ Jane M. Beckering
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Michael F. Gadola




                                                -5-
