                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 9, 2014
                Plaintiff-Appellee,

v                                                                   No. 317594
                                                                    Wayne Circuit Court
CHANTON LEWIN BLACKSHIRE,                                           LC No. 12-003666-FC

                Defendant-Appellant.


Before: JANSEN, P.J., and TALBOT and SERVITTO, JJ.

PER CURIAM.

       Chanton Lewin Blackshire appeals as of right his jury trial conviction of unlawfully
driving away an automobile (UDAA).1 Blackshire was sentenced, as a fourth habitual offender,2
to 46 months’ to 10 years’ imprisonment, with 490 days’ jail credit. We affirm.

                            I.   BLACKSHIRE’S BRIEF ON APPEAL

       Blackshire contends that there was insufficient evidence to support his UDAA
conviction. We disagree.

       “We review de novo a challenge on appeal to the sufficiency of the evidence.”3 Due
process requires sufficient evidence to sustain a conviction.4 “In reviewing the sufficiency of the
evidence, this Court must view the evidence in the light most favorable to the prosecution and
determine whether a rational trier of fact could find that the essential elements of the crime were
proven beyond a reasonable doubt.”5



1
 MCL 750.413. Blackshire was originally charged with carjacking, MCL 750.529a(1), but was
only convicted of the lesser offense of UDAA by the jury.
2
    MCL 769.12.
3
    People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010).
4
    People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999) (citation omitted).
5
    People v Kosik, 303 Mich App 146, 150; 841 NW2d 906 (2013).


                                                -1-
          MCL 750.413 provides, in pertinent part:

          Any person who shall, wilfully and without authority, take possession of and
          drive or take away, and any person who shall assist in or be a party to such taking
          possession, driving or taking away of any motor vehicle, belonging to another,
          shall be guilty of a felony . . . .

Thus, the essential elements of UDAA are: “(1) possession of a vehicle, (2) driving the vehicle
away, (3) that the act is done wilfully, and (4) the possession and driving away must be done
without authority or permission.”6 Further, “it is well settled that identity is an element of every
offense.”7 Identity can be established by either direct or circumstantial evidence.8 “The
credibility of identification testimony is a question for the trier of fact that we do not resolve
anew. Moreover, this Court has stated that positive identification by witnesses may be sufficient
to support a conviction of a crime.”9

         Blackshire only challenges the element of identity. Blackshire merely argues that the
victim’s testimony was not credible given her inconsistent statements and her emotional state
during the theft of her van, and that the victim’s memory of Blackshire as the perpetrator was
formed during the police officers’ suggestive identification processes.10 Essentially, Blackshire
does not claim that the prosecution failed to set forth evidence identifying him as the perpetrator
of the offense; he merely argues that the victim was not credible and her identification of him
should not be accepted by this Court. We may not, however, interfere with the jury’s role of
determining the credibility of identification testimony.11 Blackshire and his daughter both
testified that it was a man named Winston, not Blackshire, who drove off with the victim’s van.
Though this testimony contradicted the victim’s unequivocal testimony that she saw Blackshire
drive away in her car, this Court will not disturb a jury’s determination of the credibility of
witnesses.12 Also, this positive identification by a witness is sufficient to support the
conviction.13 Therefore, the prosecution proffered sufficient testimony identifying Blackshire as
the perpetrator of the UDAA.

                     II.   BLACKSHIRE’S STANDARD 4 BRIEF ON APPEAL




6
    People v Hendricks, 200 Mich App 68, 71; 503 NW2d 689 (1993), aff’d 446 Mich 435 (1994).
7
    People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008).
8
    People v Kern, 6 Mich App 406, 409; 149 NW2d 216 (1967).
9
    People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000) (citations omitted).
10
     The issue of the victim’s identification of Blackshire will be addressed infra, Section II.E.
11
     Davis, 241 Mich App at 700.
12
     Kosik, 303 Mich App at 150.
13
     Davis, 241 Mich App at 700.


                                                   -2-
       In a brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4,
Blackshire alleges several additional errors.

                                A. SIGNING OF THE FELONY COMPLAINT

       Blackshire first contends that his due process rights were violated because the trial court
never had jurisdiction over him, due to defects in his felony complaint. We disagree.

        “Issues of statutory interpretation are reviewed de novo on appeal.”14              Also,
“[i]nterpretation of a court rule is a question of law that this Court reviews de novo.”15 In
interpreting a court rule, this Court applies “the same rules as when [it] engage[s] in statutory
interpretation.”16

       “The primary function of a complaint is to move the magistrate to determine whether a
warrant shall issue.”17 “The complaint must include the substance of the accusation against the
accused and the name and statutory citation of the offense.”18 It “must be signed and sworn to
before a judicial officer or court clerk.”19 In addition, “[a] complaint may not be filed without a
prosecutor’s written approval endorsed on the complaint or attached to it . . . .”20 Under MCR
6.104(D), if an accused is arrested without a warrant, the prosecutor must file the complaint “at
or before the time of arraignment.” “On receiving the complaint and on finding probable cause,
the court must either issue a warrant or endorse the complaint . . . .”21

        Blackshire’s claim that the felony complaint was never signed and sworn to is without
merit. Blackshire was arrested on March 27, 2012, shortly after the victim called the police to
report the theft of her van. He was arraigned before the district court on March 30, 2012.
Contrary to Blackshire’s assertion, the felony complaint in Blackshire’s file was signed by the



14
     People v Morales, 240 Mich App 571, 575; 618 NW2d 10 (2000).
15
  People v Buie, 285 Mich App 401, 416; 775 NW2d 817 (2009) (citation and quotation marks
omitted).
16
     Id. (citation and quotation marks omitted).
17
  People v Higuera, 244 Mich App 429, 443; 625 NW2d 444 (2001) (citation and quotation
marks omitted); see also MCR 6.102(A) (“A court must issue an arrest warrant . . . if presented
with a proper complaint and if the court finds probable cause to believe that the accused
committed the alleged offense.”).
18
     MCR 6.101(A).
19
     MCR 6.101(B).
20
  MCR 6.101(C); see also MCL 764.1(1) (stating that a magistrate shall not issue an arrest
warrant unless “the authorization is signed by the prosecuting attorney”).
21
  MCR 6.104(D); see also MCL 764.1c(1)(b) (providing that if a defendant is in custody after a
warrantless arrest, a judge, upon finding reasonable cause, can endorse the complaint).


                                                   -3-
district court judge, the complaining detective, and the prosecutor, and indicates that it was
sworn to before the judge, on that same day.

        Blackshire additionally claims that the felony complaint was defective because it was
stated in conclusory terms, did not provide the underlying facts, and did not indicate that it was
based on personal knowledge. The felony complaint contained the following allegations:

         COUNT 1: CARJACKING

         [Blackshire] did in the course of committing a larceny of [a] 1987 GMC SAFARI
         VAN, a motor vehicle, use force or violence against, or use the threat of force or
         violence against, or put in fear [the victim], a person in lawful possession of the
         motor vehicle; contrary to MCL 750.529a.

Therefore, the felony complaint satisfied the statutory requirement that it “include the substance
of the accusation against the accused and the name and statutory citation of the offense.”22
Further, a complaint need not contain a detailed factual account of the offenses23 and may be
based on “information and belief.”24 Blackshire has not proffered, and the lower court file is
vacant of, any procedural defects related to his felony complaint. Further, this Court has held
that a conclusory complaint “does not oust jurisdiction.”25 Thus, Blackshire’s argument lacks
merit.

                              B. INEFFECTIVE ASSISTANCE OF COUNSEL

       Blackshire next contends that his trial counsel was ineffective on the basis of numerous
omissions and failures. Finding no errors requiring reversal, we disagree.

       A claim of ineffective assistance of counsel is preserved by a motion for a new trial or a
Ginther26 hearing.27 Blackshire never requested a new trial or a Ginther hearing below.
Therefore, this issue is unpreserved for appeal.

        “Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.”28 Generally, the trial court’s findings of fact are reviewed for clear



22
     MCR 6.101(A).
23
     MCL 764.1d.
24
     MCL 764.1a(3).
25
  People v Mayberry, 52 Mich App 450, 450-451; 217 NW 2d 420 (1974). For these reasons,
Blackshire’s claims of ineffective assistance of counsel relating to this issue also fail.
26
     People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
27
     People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).
28
     People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).


                                                 -4-
error and the questions of constitutional law are reviewed de novo.29 Unpreserved claims of
ineffective assistance of counsel can still be reviewed; however, this “review is limited to errors
apparent on the record.”30

        In order to establish a claim of ineffective assistance of counsel, a defendant must show
that: (1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms; (2) there is a reasonable probability that, but for counsel’s errors,
the result of the proceedings would be different; and (3) the result that did occur was
fundamentally unfair or unreliable.31 “Effective assistance of counsel is presumed, and the
defendant bears the heavy burden of proving otherwise.”32 This Court will not substitute its
judgment for that of trial counsel on matters of strategy, nor will it employ the benefit of
hindsight to assess the competence of counsel.33

        Blackshire first bases his claim of ineffective assistance on trial counsel’s failure to visit
him in jail to discuss his case or to investigate the case properly. Limiting our review to the
record, however, there is no evidence to support Blackshire’s claim that trial counsel failed to
investigate the case or meet with him. As the trial court noted early on the second day of trial,
Blackshire had consistently complained that each of the three attorneys that he had been assigned
throughout the lengthy pretrial process was not visiting with him in jail, despite evidence that
they had gone to discuss the case with him. Further, as the trial court pointed out, trial counsel
sought an investigator and subpoenaed witnesses related to the case. Therefore, there is no
evidence on the record to support Blackshire’s claims that trial counsel was ineffective for failing
to meet with him or properly investigate the case.

        Blackshire next claims that trial counsel was ineffective for failing to call the witnesses
he requested, ask the witnesses the questions he wanted asked, and present cell phone records
that were in his possession. Whether to call or question witnesses,34 and what evidence to
present,35 are presumed to be matters of trial strategy. This Court will not second-guess such
strategy with the benefit of hindsight.36 Furthermore, the failure to call witnesses or present
evidence can constitute ineffective assistance of counsel only when it deprives the defendant of a
substantial defense.37


29
     Id.
30
     People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
31
     People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012).
32
     Id.
33
     Payne, 285 Mich App at 190 (citation omitted).
34
     People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012).
35
     People v Dunigan, 299 Mich App 579, 589-590; 831 NW2d 243 (2013).
36
     Id.
37
     Id.; Payne, 285 Mich App at 190 (citation omitted).


                                                 -5-
         Blackshire claims that his trial counsel failed to contact an unnamed witness that would
have allegedly testified that Winston was the driver of the van and that Winston had a
relationship with the victim. The record, however, does not support the existence of the
unnamed witness or what the testimony of the unnamed witness would have been. Blackshire
also claims that his trial counsel failed to call Detective Michael Maurier, who made numerous
false statements and was in possession of a video tape that showed a person getting in the
allegedly stolen vehicle who was taller than Blackshire. Detective Maurier did, however, testify
at trial and there is no evidence in the record of the alleged video tape. Blackshire also fails to
point out the alleged false statements made by Detective Maurier. Blackshire further claims that
his trial counsel failed to impeach the victim and another witness at trial. Based on the record,
Blackshire, however, fails to overcome the presumption that trial counsel’s conduct was sound
trial strategy38 and has not shown that he was deprived of a substantial defense.39 Trial counsel
called both Blackshire’s daughter and Blackshire to testify to his version of events on the day in
question. Blackshire was able to testify that he never stole, or even drove, the victim’s car,
despite the testimony to the contrary. Finally, Blackshire argues that trial counsel failed to
obtain cell phone records showing that Winston called the victim. The record does not support
the existence of any cell phone records that would have “proved this whole case was a lie.”
Thus, Blackshire’s claims fail.

         Blackshire next argues that trial counsel was ineffective for failing to “file valid motions”
that he needed. Blackshire, however, gives no indication which, if any, motions he asked trial
counsel to file. Without any indication what motions Blackshire would have liked trial counsel
to file, Blackshire has not overcome the strong presumption of trial counsel’s effectiveness.40

        Blackshire also claims that trial counsel was ineffective for failing to argue the issue of
his unsigned and unsworn felony complaint. As discussed above, Blackshire’s felony complaint
was properly signed on the day of his arraignment, and there was no procedural violation. Trial
counsel was not required to advocate a meritless position.41 Therefore, trial counsel was not
ineffective on this basis.

        Next, Blackshire contends that trial counsel was ineffective for failing to object to the
trial court instructing the jury on the uncharged offense of UDAA, depriving him of his due
process right to notice. In closing argument, trial counsel suggested to the jury that Blackshire
was, at most, guilty of UDAA, not carjacking. The trial court then, upon request by the
prosecutor, decided to instruct the jury on the offense of UDAA. Trial counsel did not object
and, as discussed below, waived the issue. This Court has stated that it “will not second-guess
counsel’s trial tactic of admitting guilt of a lesser offense.”42 Further, declining to raise


38
     Dunigan, 299 Mich App at 589-590; Russell, 297 Mich App at 716.
39
     Dunigan, 299 Mich App at 589; Payne, 285 Mich App at 190 (citation omitted).
40
     Lockett, 295 Mich App at 187.
41
     Ericksen, 288 Mich App at 201.
42
     People v Emerson (After Remand), 203 Mich App 345, 349; 512 NW2d 3 (1994).


                                                 -6-
objections can be sound trial strategy.43 Here, the prosecution provided substantial evidence, in
the form of the victim’s testimony, that she saw Blackshire drive off in her car and threaten her
with a screwdriver. It was reasonable trial strategy for trial counsel to assume that the jury was
unlikely to completely acquit Blackshire, and, therefore, allow instructions on a lesser offense,
which could lessen Blackshire’s conviction and sentence. Therefore, Blackshire fails to
overcome the presumption that counsel’s assistance was effective.44 Moreover, Blackshire fails
to establish that the result was fundamentally unfair.45 The felony information gave Blackshire
sufficient notice of the need to defend against UDAA and Blackshire fails to argue how any lack
of notice prejudiced his defense.46

         Finally, Blackshire argues that his trial counsel failed to object when the victim testified
at trial that she identified Blackshire next to a white van. Blackshire claims that he was never
next to the van. The record does not support Blackshire’s assertion that he was never identified.
At trial, Blackshire’s testimony suggested that he was identified while standing next to the police
car. Even if the victim’s testimony was inconsistent with Blackshire’s version of events,
Blackshire fails to overcome the presumption that trial counsel’s failure to object was sound trial
strategy.47

                            C. NOTICE OF CHARGES/JURY INSTRUCTIONS

        Blackshire contends that his due process rights were violated when the trial court
instructed the jury on UDAA, despite never having been arraigned on that charge or otherwise
having any notice of it, and where the instruction on UDAA was inaccurate. We disagree.

       “A party must object or request a given jury instruction to preserve the error for review.
Absent an objection or request for an instruction, this Court will grant relief only when necessary
to avoid manifest injustice.”48 Where counsel expresses satisfaction with the jury instructions,
however, any claim of error is deemed waived, leaving nothing for this Court’s review.49
Blackshire never objected to the trial court’s decision to instruct the jury on UDAA, as well as


43
     People v Unger, 278 Mich App 210, 242, 253; 749 NW2d 272 (2008).
44
     Lockett, 295 Mich App at 187.
45
     Id.
46
   See People v Darden, 230 Mich App 597, 601-602; 585 NW2d 27 (1998). See also People v
Apgar, 264 Mich App 321, 327; 690 NW2d 312 (2004) (“Although defendant was convicted of
an uncharged crime, we conclude that defendant was not deprived of due process because all the
elements of the uncharged crime were proved at the preliminary examination and trial without
objection, providing defendant adequate notice.”).
47
     Unger, 278 Mich App at 242.
48
  People v Sabin (On Second Remand), 242 Mich App 656, 657; 620 NW2d 19 (2000) (citations
omitted).
49
     People v Carter, 462 Mich 206, 219; 612 NW2d 144 (2000).


                                                -7-
carjacking. Further, defense counsel expressed satisfaction with the jury instructions at their
conclusion, waiving appellate review of this issue. The trial court explicitly asked the parties if
they were “satisfied with the instructions,” to which defense counsel replied, “Yes, your Honor.”
Defense counsel’s explicit expression of satisfaction waived any error in the jury instructions.50
Further, the trial court only decided to include instructions on UDAA because of defense
counsel’s closing arguments indicating that, at most, the prosecution had offered evidence to
support UDAA. “[A] party may not harbor error at trial and then use that error as an appellate
parachute . . . .”51 Therefore, defendant has waived this issue, and cannot obtain appellate
review.52

                               D. NOTICE OF HABITUAL SENTENCING

        Blackshire next contends that his sentence as a fourth habitual offender was invalid
because of the prosecution’s failure to have the felony complaint signed and sworn to and the
reliance on invalid prior convictions. We disagree.

        “For an issue to be preserved for appellate review, it must be raised, addressed, and
decided by the lower court.”53 Because Blackshire failed to argue below that he had never
received notice of his sentencing enhancement or challenge the validity of the prior convictions
listed in the habitual-offender notice, this issue is unpreserved for appeal and our review is for
plain error affecting substantial rights.54

        A prosecuting attorney can seek a sentencing enhancement under the habitual-offender
statutes by filing written notice within 21 days after arraignment or, if arraignment is waived,
within 21 days after the information is filed.55 The lower court record contains both a felony
complaint and a felony information, which include fourth-offense habitual offender notices, both
dated March 30, 2012. Blackshire’s arraignment also occurred on March 30, 2012. Therefore,
the notice was properly and timely filed.56

       With regard to the validity of the prior convictions, a defendant “may challenge the
accuracy or constitutional validity of 1 or more of the prior convictions listed in the notice by


50
     Id.
51
     People v Szalma, 487 Mich 708, 726; 790 NW2d 662 (2010).
52
     People v Hall (On Remand), 256 Mich App 674, 679; 671 NW2d 545 (2003).
53
     People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007).
54
  People v Marshall, 298 Mich App 607, 625-626; 830 NW2d 414 (2012), vacated in part on
other grounds 493 Mich 1020 (2013).
55
     MCL 769.13(1).
56
   It is unclear what Blackshire is referring to by his statement that he “never received an
acknowledgment of receipt.” He, however, fails to argue that he was not served with the notice,
as required under MCL 769.13(2).


                                                -8-
filing a written motion with the court and by serving a copy of the motion upon the prosecuting
attorney.”57 The existence of a defendant’s prior convictions is determined by the court based on
any evidence that is relevant for that purpose, including information contained in the presentence
report.58 Blackshire never challenged the accuracy or validity of his prior convictions in a
motion. Moreover, Blackshire does not dispute that the two prior convictions that he claims
were invalid were supported by information in the presentence report.59 Rather, Blackshire
claims that the information in the presentence report was incorrect and that his trial counsel
failed to raise numerous errors in the presentence report. Based on the record before us,
however, there is no evidence, other than Blackshire’s assertions, that the prior convictions were
improper or invalid. Thus, Blackshire has failed to establish plain error affecting his substantial
rights.60

                                     E. IDENTIFICATION EVIDENCE

       Blackshire next contends that his due process rights were violated by the trial court’s
admission of his improper and highly suggestive identification. We disagree.

        “On review, the trial court’s decision to admit identification evidence will not be reversed
unless it is clearly erroneous. Clear error exists when the reviewing court is left with the definite
and firm conviction that a mistake has been made.”61

        A defendant is generally entitled to have counsel present during an identification
procedure.62 Counsel is not required, however, at an on-the-scene corporeal identification
conducted before the initiation of adversarial judicial proceedings.63 “[P]rompt, on-the-scene
identifications are reasonable, ‘indeed indispensable, police practices because they permit the
police to immediately decide whether there is a reasonable likelihood that the suspect is
connected with the crime, and subject to arrest, or merely an unfortunate victim of
circumstance.’ ”64



57
     MCL 769.13(4).
58
     MCL 769.13(5)(d).
59
  We note that the complete presentence report was not provided on appeal. Additionally, in a
motion to preclude cross-examination regarding his prior convictions, Blackshire admitted that
he had three prior convictions.
60
     See Marshall, 298 Mich App at 625-626.
61
   People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993) (opinion by GRIFFIN, J.)
(citations omitted); id. at 318 (BOYLE, J., concurring in part and dissenting in part).
62
     People v Winters, 225 Mich App 718, 723; 571 NW2d 764 (1997).
63
     People v Hickman, 470 Mich 602, 611; 684 NW2d 267 (2004); Winters, 225 Mich App at 727.
64
 People v Libbett, 251 Mich App 353, 359; 650 NW2d 407 (2002), quoting Winters, 225 Mich
App at 728.


                                                -9-
        “A lineup can be so suggestive and conducive to irreparable misidentification that it
denies an accused due process of law.”65 “In order to sustain a due process challenge, a
defendant must show that the pretrial identification procedure was so suggestive in light of the
totality of the circumstances that it led to a substantial likelihood of misidentification.”66 The
remedy for an impermissibly suggestive pretrial procedure is the exclusion of testimony
concerning that identification at trial.67 “However, in-court identification by the same witness
still may be allowed if an independent basis for in-court identification can be established that is
untainted by the suggestive pretrial procedure.”68

        Here, the victim was brought by police officers to the scene of Blackshire’s arrest shortly
after she was originally accosted by Blackshire, in order to attempt to identify him as the man
she saw take her car. While still in the police car, and approximately 100 feet away from
Blackshire, his girlfriend, and their children, the victim stated, “those are the people that were in
my car,” and identified Blackshire as the person who took her car. According to the victim, once
on the scene of Blackshire’s arrest, she was told to identify the man who stole her van, if he was
present. The victim saw Blackshire standing next to a white taxi van with a woman and three
kids, and she identified Blackshire as the man who stole her van. The victim further noted that
Blackshire had changed his shirt between when she first saw him stealing her van and when she
identified him with the officers, but the victim told the officers about the shirt and still had no
doubt in her mind that Blackshire was the man she saw stealing her van. Again, no counsel is
required at an on-the-scene corporeal identification conducted before the initiation of adversarial
judicial proceedings,69 and there is nothing in the record to show that this particular identification
was unduly suggestive.70

        Blackshire essentially argues that the victim was lying or not credible when she testified
that she identified Blackshire while he was standing in front of the taxi van because he was
already placed in a police car before the victim arrived on scene. There is no support in the
record below for Blackshire’s assertion, however, and this Court will not resolve the credibility
of identification testimony on appeal.71



65
     People v Hornsby, 251 Mich App 462, 466; 650 NW2d 700 (2002).
66
  Kurylczyk, 443 Mich at 302 (opinion by GRIFFIN, J.); id. at 318 (BOYLE, J., concurring in part
and dissenting in part).
67
  Kurylczyk, 443 Mich at 303 (opinion by GRIFFIN, J.); id. at 318 (BOYLE, J., concurring in part
and dissenting in part).
68
  Kurylczyk, 443 Mich at 303 (opinion by GRIFFIN, J.); id. at 318 (BOYLE, J., concurring in part
and dissenting in part).
69
     Hickman, 470 Mich at 611.
70
     See Libbett, 251 Mich App at 363.
71
  Davis, 241 Mich App at 700. For these reasons, Blackshire’s suggestion that trial counsel was
ineffective in failing to address this issue also fails.


                                                -10-
                                     F. PROSECUTORIAL MISCONDUCT

        Finally, Blackshire contends that his due process and equal protection rights were
violated by numerous instances of prosecutorial misconduct. Again, we disagree.

       A claim of prosecutorial misconduct generally must be preserved with a
contemporaneous objection and a request for a curative instruction at trial.72 Blackshire never
objected to the prosecutor’s conduct, except with regard to the felony complaint, nor did he
request any curative instructions at trial. Therefore, this issue is unpreserved for appeal.

        “Issues of prosecutorial misconduct are reviewed de novo to determine whether the
defendant was denied a fair and impartial trial. Further, allegations of prosecutorial misconduct
are considered on a case-by-case basis, and the reviewing court must consider the prosecutor’s
remarks in context.”73 We review unpreserved issues of prosecutorial misconduct “for plain
error affect substantial rights.”74 “Reversal is warranted only when plain error resulted in the
conviction of an actually innocent defendant or seriously affected the fairness, integrity, or
public reputation of judicial proceedings. Further, [this Court] cannot find error requiring
reversal where a curative instruction could have alleviated any prejudicial effect.”75

        Blackshire first contends that the prosecutor committed misconduct by “continu[ing] a
case where they had no jurisdiction legally to do so,” because his felony complaint was never
signed and sworn to. Again, Blackshire’s felony complaint was properly signed at his
arraignment, and there was no procedural violation in that regard. Therefore, it cannot be said
that the prosecutor committed misconduct in continuing Blackshire’s prosecution.

        Blackshire next contends that the prosecutor committed misconduct by failing to disclose
exculpatory evidence, i.e., a videotape that showed a man “a lot taller than” Blackshire getting
into the victim’s van. The prosecution’s failure to disclose exculpatory or material evidence in
its possession constitutes a due process violation regardless of whether the defendant requested
the evidence.76 The elements of a Brady violation are: “(1) the prosecution has suppressed
evidence; (2) that is favorable to the accused; and (3) viewed in its totality, is material.”[77]

       Despite Blackshire’s appellate claim that the prosecution failed to disclose a videotape
that showed a different man getting into the victim’s car, a review of the lower court record
shows no mention by either party of this videotape’s existence. Blackshire has not offered any


72
     People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010).
73
     Id. (citations omitted).
74
     Id.
75
     Id. at 475-476 (citations and quotation marks omitted; alteration in original).
76
  Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963); People v Jackson,
292 Mich App 583, 590-591; 808 NW2d 541 (2011).
77
     People v Chenault, 495 Mich 142, 155; 845 NW2d 731 (2014).


                                                  -11-
proof beyond mere speculation that the videotape exists, let alone that the prosecution concealed
or destroyed the videotape. Thus, Blackshire has not shown either a Brady violation or
prosecutorial misconduct.

        Third, Blackshire argues that the prosecutor committed misconduct by impeaching him
with an inadmissible, illegally seized, and unauthenticated letter. Before trial, Blackshire mailed
two letters from jail to the victim, one dated April 13, 2012, and the second dated May 15, 2012.
The letters were intercepted by one of the victim’s coworkers, who then opened one of the letters
and turned both over to the police. Once the letters were turned over to the police, an officer
opened the second letter and then obtained a warrant to arrest Blackshire for witness tampering.
On August 30, 2012, one of Blackshire’s previous attorneys filed a motion to suppress the letters
based on Blackshire’s Fourth Amendment rights. On March 27, 2013, the parties appeared
before the trial court for a pretrial hearing and to argue Blackshire’s motion. At the hearing,
Blackshire’s trial counsel argued that the police officer had no right to open the second letter
without a search warrant. The trial court found that the police officer violated Blackshire’s
Fourth Amendment rights when he opened the second letter, but because the first letter had been
opened by “a private citizen,” it did not need to be suppressed. Therefore, the trial judge allowed
the use of the first letter at trial, but barred admission or mention of the second letter. At trial,
the prosecution cross-examined Blackshire regarding the letter he sent to the victim on April 13,
2012. “This is essentially an evidentiary issue framed as prosecutorial misconduct. A
prosecutor’s good-faith effort to admit evidence does not constitute misconduct.”78 The
prosecutor was acting in good faith, pursuant to the trial court’s order allowing the admission of
the April 13, 2012 letter. Therefore, his actions do not constitute misconduct.

        Blackshire also argues that the prosecutor committed misconduct by allowing, and not
correcting, perjured witness testimony. A prosecutor may not knowingly use false testimony to
obtain a conviction.79

         A defendant’s right to due process guaranteed by the Fourteenth Amendment is
         violated when there is any reasonable likelihood that a conviction was obtained by
         the knowing use of perjured testimony. Accordingly, a prosecutor has an
         obligation to correct perjured testimony that relates to the facts of the case or a
         witness’s credibility. When a conviction is obtained through the knowing use of
         perjured testimony, a new trial is required only if the tainted evidence is material
         to the defendant’s guilt or punishment. So whether a new trial is warranted
         depends on the effect the misconduct had on the trial. The entire focus of the
         analysis must be on the fairness of the trial, not on the prosecutor’s or the court’s
         culpability.[80]



78
     People v Dobek, 274 Mich App 58, 70; 732 NW2d 546 (2007).
79
     People v Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009).
80
   People v Gratsch, 299 Mich App 604, 619-620; 831 NW2d 462 (2013), vacated in part on
other grounds 495 Mich 876 (2013) (internal citations, quotation marks, and alteration omitted).


                                                 -12-
Blackshire contends that the prosecutor allowed the victim to testify at trial to a story that was
“totally different from what she [said] happened at the pre-liminary [sic] exam.” Other than
Blackshire’s blanket assertions, there was no evidence that the prosecutor knowingly admitted
false testimony. Defense counsel cross-examined the victim and had the opportunity to question
her regarding any inconsistencies in her testimony, which would have presented an issue of
weight, not admissibility, for the jury to resolve.81

        Finally, Blackshire contends that the prosecutor committed misconduct by making
numerous improper arguments to the jury. “Prosecutorial comments must be read as a whole and
evaluated in the light of defense arguments and the relationship they bear to the evidence
admitted at trial.”82 Blackshire first alleges that the prosecutor improperly and repeatedly
asserted that Blackshire was guilty. Prosecutors are free to argue the evidence and all reasonable
inferences arising from it as they relate to their theory of the case, but may not express their
personal opinion regarding a defendant’s guilt.83 “Such comments during closing argument will
be reviewed in context to determine whether they constitute error requiring reversal.”84 Despite
Blackshire’s contention, the prosecutor actually stated at the end of his closing argument, “I ask
you, remember Mr. Blackshire is innocent until proven guilty.” The only time the prosecutor
mentioned Blackshire’s guilt was at the conclusion of his rebuttal argument. The prosecutor’s
single statement alleging Blackshire’s guilt was a reasonable inference arising from the evidence
he mentioned, and does not require reversal, particularly in light of the trial court’s instruction
that the lawyers’ statements and arguments are not evidence.85

        Blackshire next contends that the prosecutor improperly vouched for the victim’s
credibility, but does not point to any specific statements. “A prosecutor may not vouch for the
credibility of his witnesses by suggesting that he has some special knowledge of the witnesses’
truthfulness.”86 However, “a prosecutor may comment on his own witnesses’ credibility during
closing argument, especially when there is conflicting evidence and the question of the
defendant’s guilt depends on which witnesses the jury believes.”87 Further, “the prosecutor may
argue from the facts that a witness should be believed.”88 In this case, the prosecution and
Blackshire each provided starkly different stories regarding the events on the day in question.




81
     People v McGhee, 268 Mich App 600, 624; 709 NW2d 595 (2005).
82
     People v Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008).
83
     People v Bahoda, 448 Mich 261, 282-283; 531 NW2d 659 (1995) (citation omitted).
84
     Id. at 283.
85
     Unger, 278 Mich App at 237.
86
     People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009).
87
     People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004).
88
     Seals, 285 Mich App at 22 (citation and quotation marks omitted).


                                                -13-
Because Blackshire’s guilt depended upon which evidence the jury believed, the prosecutor was
permitted to comment on the victim’s credibility in closing.89

        Blackshire finally contends that the prosecutor improperly “[e]xpressed to the jury how
many years [he has] been a successful prosecutor.” It is true that a prosecutor may not use “the
prestige of the prosecutor’s office to inject personal opinion.”90 While the prosecutor did
mention during his opening statement that he had been a prosecutor for 33 years, he did not use
the prestige of his office to in any way inject his personal opinion regarding the case. Reading
the prosecutor’s comments as a whole,91 his statements did not rise to the level of prosecutorial
misconduct.

         Affirmed.



                                                           /s/ Kathleen Jansen
                                                           /s/ Michael J. Talbot
                                                           /s/ Deborah A. Servitto




89
     Thomas, 260 Mich App at 455.
90
     Bahoda, 448 Mich at 286.
91
     Brown, 279 Mich App at 135.


                                              -14-
