                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED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

v                                                                    No. 324270
                                                                     Wayne Circuit Court
JOHN K. DORSEY,                                                      LC No. 14-003557-FH

                Defendant-Appellant.


Before: SERVITTO, P.J., and SAAD and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of felon in possession of a firearm,
MCL 750.224f; carrying a concealed weapon, MCL 750.227; and possession of a firearm during
the commission of a felony (felony firearm), second offense, MCL 750.227b. The trial court
sentenced defendant to concurrent sentences of five years’ probation for his felon in possession
of a firearm and carrying a concealed weapon convictions and to five years’ imprisonment for
his felony firearm conviction. We affirm.

        On October 29, 2013, Detroit police officers were patrolling an area of Detroit, in a
marked vehicle, when they approached what appeared to be a vacant home. Defendant and two
other men were standing near the back of the home and, when they saw the patrol car
approaching, defendant began walking toward the back door of the home while digging at the
side of his waistband. Two of the officers ran toward defendant and defendant entered the home.
One officer heard another of the officers yell “gun,” heard a woman scream and a child cry, and
thereafter forced entry into the home. A handgun was recovered from an area of the basement
where defendant had been observed.

         Defendant first alleges that his trial counsel was ineffective because she failed to move
for a hearing to suppress the gun seized by police during the warrantless search. A defendant
preserves a claim of ineffective assistance of counsel by raising the issue in a motion for a new
trial or a motion for a Ginther1 hearing in the trial court. People v Petri, 279 Mich App 407,



1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).



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410; 760 NW2d 882 (2008). Because defendant did neither, the issue is unpreserved. This
Court reviews an unpreserved claim of ineffective assistance of counsel for “mistakes apparent
on the record.” Id. “A trial court’s findings of fact, if any, are reviewed for clear error, and this
Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel
claim de novo.” Id.

        A defendant is entitled to the assistance of counsel. US Const, Am VI; Const 1963, art 1,
§ 20. The right to counsel has long been recognized as the right to the effective assistance of
counsel. People v Mitchell, 454 Mich 145, 152; 560 NW2d 600 (1997). To establish that
counsel’s performance was ineffective, a defendant must show that “(1) counsel’s performance
fell below an objective standard of reasonableness and (2) but for counsel’s deficient
performance, there is a reasonable probability that the outcome would have been different.”
People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). To prevail on a claim of
ineffective assistance of counsel, the defendant must overcome the strong presumption that
counsel’s performance was sound trial strategy. Strickland v Washington, 466 US 668, 689; 104
S Ct 2052; 80 L Ed 2d 674 (1984).

         It is undisputed that officers entered the home where defendant was found without a
warrant. However, defendant lacked standing to object to the search of the residence. A
defendant has standing to challenge a search if he had “a reasonable expectation of privacy in the
place that was searched,” and the defendant has the burden of establishing his standing. People v
Powell, 235 Mich App 557, 561; 599 NW2d 499 (1999). The house searched was not
defendant’s property or residence, although he was a neighbor of the resident and the resident
testified that defendant had permission to enter and leave the home as he pleased. No basis
exists to establish that defendant had a reasonable expectation of privacy regarding his
neighbor’s residence. Without a reasonable expectation of privacy in the residence, defendant
lacks standing to object to the warrantless entry onto the premises. Accordingly, there was no
successful basis to challenge the warrantless search of the residence. “Failing to advance a
meritless argument or raise a futile objection does not constitute ineffective assistance of
counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Thus, defendant
was not deprived of the effective assistance of counsel on this ground.

        Moreover, although there was disputed testimony regarding the condition of the property,
the officers involved testified that the residence appeared abandoned and in poor condition with a
boarded up window in the back. “Generally, a search conducted without a warrant is
unreasonable unless there exist both probable cause and a circumstance establishing an exception
to the warrant requirement.” People v Snider, 239 Mich App 393, 407; 608 NW2d 502 (2000)
(internal quotation marks and citation omitted). However, the search and seizure of property
perceived as abandoned is “presumptively reasonable” because the property owner does not have
an expectation of privacy in abandoned property. People v Rasmussen, 191 Mich App 721, 725;
478 NW2d 752 (1991). Objective factors must be evaluated based on the totality of the
circumstances to determine whether police officers must obtain a warrant before entering
abandoned or vacant structures. People v Taylor, 253 Mich App 399, 407; 655 NW2d 291
(2002). Factors to consider include:

       (1) the outward appearance, (2) the overall condition, (3) the state of the
       vegetation on the premises, (4) barriers erected and securely fastened in all

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       openings, (5) indications that the home is not being independently serviced with
       gas or electricity, (6) the lack of appliances, furniture, or other furnishings
       typically found in a dwelling house, (7) the length of time that it takes for
       temporary barriers to be replaced with functional doors and windows, (8) the
       history surrounding the premises and prior use, and (9) complaints of illicit
       activity occurring in the structure. [Id.]

        Officers testified that the yard had trash scattered throughout it, with overgrown bushes
and grass, and that there was at least one inoperable car parked there. One officer also testified
that the police had previous problems in the area of the residence at issue with people being in
vacant houses and selling drugs there. Based upon the foregoing, it appears that there was a
basis for considering the property to be abandoned.

        Finally, even if trial counsel had contested the legality of the search, the prosecution
could have established that the exigent circumstances of a possibly armed defendant, running
from police and entering the presumably vacant house at issue, necessitated the warrantless
entry. Two police officers testified that they observed defendant move quickly toward a house
they believed to be abandoned, while aggressively pulling on his right side once he noticed them.
One officer testified that, based upon his past experience, defendant’s behavior appeared to be
that of an armed individual trying to avoid the police. Further, the officer testified that he saw
defendant with a gun as he ran into the house. The police are not required to obtain a warrant in
emergency situations where they have probable cause to believe that the premises to be searched
contain evidence or suspects of a crime. People v Davis, 442 Mich 1, 24; 497 NW2d 910 (1993)
(citations omitted).

        Next, defendant alleges that his right to a fair trial was violated when the trial court
pierced the veil of judicial impartiality by questioning a defense witness in a manner meant to
discredit the witness’s credibility and suggest to the jury the trial court’s belief in the
prosecution’s case. To preserve a claim that the trial court made prejudicial comments or asked
prejudicial questions in front of the jury, the defendant must object in the trial court. People v
Sardy, 216 Mich App 111, 117-118; 549 NW2d 23 (1996). Here, defendant failed to object to
the challenged questioning, and the issue was not preserved. Therefore, this Court’s review is
for plain error affecting defendant’s substantial rights. People v Jackson, 292 Mich App 583,
597; 808 NW2d 541 (2011).

        “A judge’s conduct . . . violates the constitutional guarantee of a fair trial when,
considering the totality of the circumstances, it is reasonably likely that the judge’s conduct
improperly influenced the jury by creating the appearance of advocacy or partiality against a
party.” People v Stevens, 498 Mich 162, 171; 869 NW2d 233 (2015). Among the factors that a
reviewing court should consider when evaluating the totality of the circumstances are “the nature
of the judicial conduct, the tone and demeanor of the trial judge, the scope of the judicial conduct
in the context of the length and complexity of the trial and issues therein, the extent to which the
judge’s conduct was directed at one side more than the other, and the presence of any curative
instructions.” Id. at 172.

       In applying the standard set forth in Stevens, and under the totality of the circumstances,
defendant has failed to establish plain error by the trial judge. Defendant challenges the trial

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judge’s questioning of defense witness Victor Jones. Officer Fox testified for the prosecution
that he saw defendant with a gun right before defendant ran into a house where a gun was found
in the basement. Jones testified that he lived in the basement of the house with the resident’s
daughter, that the gun was his, and that he found the gun in the yard of a nearby abandoned
house. Neither the prosecution nor the defense questioned Jones in detail about how he found
the gun. Defense counsel asked Jones how he gained possession of the gun, and Jones stated that
he found the gun in a yard when he kicked it. Jones testified that he wrapped the gun up in an
old shirt, put it behind his bed, and forgot about it. During cross-examination, the assistant
prosecutor did not question the witness about how he found the gun, only about how he left a
gun in his room and forgot about it, who Jones told about it, and whether it was loaded. The trial
court then questioned Jones about how he found the gun and asked several questions about why
Jones failed to turn the found gun over to the police. These questions, placed in the context of
the questioning and the trial as a whole, were not excessive. The judge also attempted to clarify
the testimony of several other witnesses besides Jones, including police officers testifying for the
prosecution, and adopted a similar tone with each of the witnesses. Further, the judge permitted
the jury to submit questions to him that he then asked of the witnesses. The entire exchange now
challenged by defendant only consisted of a few minutes of questioning during a trial that,
including jury selection, spanned three days. The issues presented, and the challenged
questioning, were not complex. The judge’s questioning of Jones was not so biased that it
appeared that the judge doubted Jones’s testimony and was not adversarial.

       Moreover, at the end of the trial, when instructing the jury, the trial court gave the
following instruction:

       My comments, rulings questions and instructions are also not evidence . . . .
       However, when I make a comment or give an instruction, I’m not trying to
       influence your vote or express a personal opinion about the case. If you believe
       that I have an opinion about how you should decide this case, you must pay no
       attention to that opinion. You are the only judges of the facts, and you should
       decide this case from the evidence.

“Jurors are presumed to follow their instructions, and instructions are presumed to cure most
errors.” People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003).

       Because the trial court’s questioning was not adversarial and did not create an appearance
of favoring the prosecution, and the trial court further gave the jury an instruction presumed to
cure any error that occurred, we find that the trial judge’s questioning of defense witness Jones
did not amount to plain error affecting defendant’s substantial rights. Because we have also
found that defendant’s trial counsel was not ineffective for failing to attempt to suppress the
evidence of the gun found during a warrantless search, we find no basis to set aside defendant’s
convictions. Accordingly, we affirm the trial court’s judgment.

       Affirmed.

                                                             /s/ Deborah A. Servitto
                                                             /s/ Henry William Saad
                                                             /s/ Colleen A. O'Brien

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