                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                       November 10, 2015
               Plaintiff-Appellee,

v                                                                      No. 321981
                                                                       Genesee Circuit Court
KIUNDA JOHN BURRESS,                                                   LC No. 12-031238-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and CAVANAGH and MURRAY, JJ.

PER CURIAM.

        A jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), armed
robbery, MCL 750.529, felon in possession of a firearm, MCL 750.224f, felonious assault, MCL
750.82, and possession of a firearm during the commission of a felony, MCL 750.227b. The
trial court sentenced defendant as a third habitual offender, MCL 769.11, to life imprisonment
without parole for the first-degree murder conviction, and concurrent prison terms of 240 to 480
months for the armed robbery conviction, 48 to 180 months for the felon-in-possession
conviction, and 36 to 96 months for the felonious assault conviction, all to be served consecutive
to a two-year term of imprisonment for the felony-firearm conviction. Defendant appeals as of
right. We affirm.

                                             I. FACTS

        On June 11, 2012, defendant appeared at the mobile home of Antoine Funches, looking
to purchase marijuana. Funches resided in the mobile home with his son, girlfriend, and
girlfriend’s mother. Funches knew defendant’s brother, but had not socialized with defendant
before. Funches invited defendant inside. Another person, Joshua Stepp, was with Funches.
The three of them smoked marijuana. After Funches returned from the bathroom, defendant
confronted him with a gun. Funches knew he was being robbed and gave defendant his
marijuana and cash. Defendant then pointed the gun at Stepp and Funches heard a gunshot.
Defendant then left. Stepp died from a single gunshot wound to his chest. Defendant gave a
statement to the police and admitted being in Funches’s trailer, but claimed that he was in the
bathroom when the gunshot was fired, after which he left the trailer and ran off.

       At trial, defendant elected to testify after the trial court ruled that the prosecutor could use
defendant’s prior convictions for bank robbery and receiving or concealing stolen property to


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impeach defendant’s credibility. Defendant again admitted being inside Funches’s trailer, and
claimed that he was in the bathroom when the gunshot was fired.

                                        II. ANALYSIS

                      A. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant argues that his trial counsel was ineffective for not moving to preclude the
prosecutor from using defendant’s prior bank robbery conviction as impeachment evidence
under MRE 609.

       To establish ineffective assistance of counsel, defendant must show that counsel’s
performance fell below an objective standard of reasonableness, and that the representation so
prejudiced defendant that he was denied a fair trial. People v Pickens, 446 Mich 298, 338; 521
NW2d 797 (1994). Defendant must overcome the presumption that the challenged action might
be considered sound trial strategy. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315
(1991). To establish prejudice, defendant must show that there is a reasonable probability that,
but for counsel’s error, the result of the proceeding would have been different. People v
Johnson, 451 Mich 115, 124; 545 NW2d 637 (1996).

       Before defendant testified, the parties discussed, in defendant’s presence, whether
defendant’s prior convictions in 2000 for bank robbery and receiving or concealing stolen
property could be admitted under MRE 609 to impeach defendant’s credibility. Defense counsel
expressed his intent to elicit the prior convictions in his direct examination of defendant.
However, the trial court proceeded to analyze the admissibility of the evidence in accordance
with MRE 609 and expressed its view that the prior convictions were admissible because “the
probative value of the evidence does outweigh [its] prejudicial effect.” Thereafter, during
defendant’s direct examination testimony, defendant admitted that he was previously convicted
in 2000 of both bank robbery and receiving or concealing stolen property.

       In Ohler v United States, 529 US 753, 760; 120 S Ct 1851; 146 L Ed 2d 826 (2000), the
United States Supreme Court held that “a defendant who preemptively introduces evidence of a
prior conviction on direct examination may not on appeal claim that the admission of such
evidence was error.” The issue in this case, however, is whether defense counsel was ineffective
for not moving to preclude the use of his bank robbery conviction as impeachment evidence
under MRE 609.

       MRE 609 provides, in relevant part:

               (a) General Rule. 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


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              (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.

               (b) Determining Probative Value and Prejudicial Effect. 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.

               (c) Time Limit. Evidence of a conviction under this rule is not admissible
       if a period of more than ten years has elapsed since the date of the conviction or
       of the release of the witness from the confinement imposed for that conviction,
       whichever is the later date.

        Although defense counsel did not expressly oppose the admission of the prior convictions
for impeachment, the record discloses that the trial court expressly addressed the admissibility of
the evidence under MRE 609. First, the court observed that both convictions qualified for
admission under MRE 609(a)(2)(A) because they were for crimes that contained an element of
theft, and both were punishable by imprisonment for more than one year. Second the court
weighed the probative value of the evidence against its prejudicial effect and concluded “that the
probative value of the evidence does outweigh his [sic] prejudicial effect.” Thus, even though
defense counsel did not expressly move to exclude the convictions, the record contains the trial
court’s analysis of the evidence, and its conclusion that the evidence was admissible. Thus,
defendant cannot establish either that his counsel was ineffective or that he suffered prejudice by
counsel’s failure to oppose the admissibility of the bank robbery conviction. See People v Riley,
468 Mich 135, 142; 659 NW2d f611 (2003) (trial counsel is not ineffective for failing to make a
meritless motion).

        Defendant also appears to argue that defense counsel was ineffective for eliciting the
prior convictions on direct examination, including details of the prior offenses. It is clear from
the record, however, that this was a matter of trial strategy. Counsel sought to preemptively
question defendant on direct examination to lessen the “sting” of this evidence. Further,
counsel’s questioning regarding the factual details of the prior offense was intended to show that
defendant played only a secondary role in the prior offense and did not possess a gun. Defendant
also explained that he was young and in need of money at the time, because he recently had a




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child. Defense counsel’s decision to elicit this testimony on direct examination was not
objectively unreasonable.1

                                II. IMPEACHMENT EVIDENCE

        Next, defendant argues that the trial court erred in allowing the prosecutor to admit
certified copies of records associated with defendant’s prior convictions. The records showed
that defendant pleaded guilty to bank robbery and receiving or concealing stolen property in
2000 pursuant to a plea agreement that involved the dismissal of other charges. The trial court
admitted this evidence for the limited purpose of rebutting defendant’s testimony, on direct
examination by defense counsel, that he pleaded guilty in the prior matter only because he “knew
[he] was guilty.” Both the admission of evidence and the scope of cross-examination are within
the discretion of the trial court. People v Washington, 468 Mich 667, 670-671; 664 NW2d 203
(2003); People v Hackett, 421 Mich 338, 347; 365 NW2d 120 (1984).

       In support of his argument, defendant relies on a line of cases that hold that the inquiry
concerning facts related to a prior conviction, or inquiry regarding prior charges that do not result
in conviction, is generally not permitted. In People v Falkner, 389 Mich 682, 695; 209 NW2d
193 (1973), our Supreme Court stated:

              We hold that in the examination or cross-examination of any witness, no
       inquiry may be made regarding prior arrests or charges against such witness
       which did not result in conviction; neither may such witness be examined with
       reference to higher original charges which have not resulted in conviction,
       whether by plea or trial.

       However, in People v Layher, 464 Mich 756, 757-758, 767-769; 631 NW2d 281 (2001),
the Supreme Court characterized its holding in Falkner as overly broad, and held that a trial
court may properly allow questioning about prior arrests or charges to establish witness bias
where the admission of such evidence is consistent with the safeguards found in the Michigan
Rules of Evidence.

        Although the rule from Falkner may have prohibited the prosecutor from initially
inquiring about the collateral facts surrounding defendant’s prior plea-based conviction, defense
counsel opened the door to such evidence by questioning defendant regarding his reasons for
pleading guilty in the prior case. Defendant’s testimony indicated that he pleaded guilty in that
case only because he knew he was guilty, leaving the jury with the impression that he was
willing to accept responsibility for his conduct whenever he was guilty. The challenged
evidence was not intended to allow the jury to hear about the facts of the prior case, but only to
test the credibility of defendant’s explanation for pleading guilty by showing that he had other
motivations for entering a guilty plea. Having offered an explanation for his decision to plead


1
  Defendant alternatively requests this Court to remand this matter for an evidentiary hearing on
this claim of ineffective assistance of counsel. However, we conclude that the record is
sufficient to evaluate this argument.


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guilty, defendant “opened the door to a full and not just selective development of that subject.”
People v Allen, 201 Mich App 98, 103; 505 NW2d 869 (1993) (citation omitted).

        The trial court allowed the challenged evidence for the limited purpose of rebutting
defendant’s direct examination testimony regarding the reason for his guilty plea, and the court
instructed the jury on the limited purpose of this evidence. Under the circumstances, the trial
court’s decision is within the range of principled outcomes. Accordingly, the trial court did not
abuse its discretion by admitting the challenged evidence.

       Affirmed.



                                                           /s/ Cynthia Diane Stephens
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Christopher M. Murray




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