People v. Dixon

• Decision Date: 05 July 1996
• Docket Number: No. 154939,154939
• Citation: 217 Mich.App. 400,552 N.W.2d 663
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lamont DIXON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 663

552 N.W.2d 663

217 Mich.App. 400

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lamont DIXON, Defendant-Appellant.

No. 154939.

Court of Appeals of Michigan.

Submitted Feb. 20, 1996,

at Grand Rapids.

Decided July 5, 1996, at 9:00 a.m.

Released for Publication Sept. 4, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and Judith B. Ketchum, Assistant Prosecuting Attorney, for people.

State Appellate Defender by F. Michael Schuck, Detroit, for defendant on appeal.

Before MARKEY, P.J., and HOLBROOK and MATUZAK, ^* JJ.

PER CURIAM.

Following a mistrial, and on retrial, defendant was convicted by a jury of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant then pleaded guilty of being a second-offense habitual offender, M.C.L. § 769.10; M.S.A. § 28.1082. He was sentenced to the mandatory two years' imprisonment for the felony-firearm conviction to be served consecutively to a twenty-five-to-sixty-year term of imprisonment imposed for the armed robbery conviction. Defendant appeals as of right. We affirm.

I

Defendant's convictions arise from an armed robbery and shooting that occurred on January 1, 1992, in the City of Kalamazoo. As Martin Marlowe, James Alexander, and John Rogers sat talking in Alexander's vehicle, which was parked in the driveway behind Marlowe's residence, they were approached by three males, one of whom was defendant, and asked if they wished to purchase narcotics. Alexander responded negatively. Defendant and his companions then walked away from the vehicle. A short time later, defendant and his companions returned to Alexander's vehicle, displayed firearms, and ordered the occupants from the vehicle. Marlowe, Alexander, and Rogers got out of the vehicle. They were then told to empty their pockets. As Marlowe and Rogers complied, Alexander pushed one of the robbers and fled. In the resulting chaos, Marlowe, Alexander, and Rogers were able to escape, but not before Alexander suffered a gunshot wound to the right calf.

Defendant denied any involvement in the robbery or the shooting. He testified that on the evening in question he was at the home of his grandmother, then at the home of a friend, and finally at the University Inn with a friend and her two companions.

II

Defendant argues that he was denied his right to the equal protection of the law and his right to an impartial jury drawn from a representative cross section of the community because the process used by Kalamazoo County to allocate prospective jurors from a general source list to its circuit court venires systematically excluded African Americans from those venires. Unlike in People v. Hubbard, 217 Mich.App. 459, 465-467, 552 N.W.2d 493 (1996), defendant's challenge to his jury array was not made until after his jury had been impaneled and sworn. Accordingly, the challenge was not advanced in a timely fashion. People v. McCrea, 303 Mich. 213, 278, 6 N.W.2d 489 (1942); Hubbard, supra, at 465-467, 552 N.W.2d 493. Moreover, after defendant raised his untimely challenge, he failed to create a factual record to support his claim. In fact, defendant declined the trial court's offer to summon the county's jury clerk to testify about the allocation process. On this record, defendant has forfeited appellate consideration of this issue.

III

Defendant next argues that he was denied a fair trial when the trial court required him to wear shackles and belly chains in the presence of the jury. We disagree.

Freedom from shackling is an important component of a fair trial. People v. Williams, 173 Mich.App. 312, 314, 433 N.W.2d 356 (1988). Consequently, the shackling of a defendant during trial is permitted only in extraordinary circumstances. People v. Jankowski, 130 Mich.App. 143, 146 342 N.W.2d 911 (1983). Restraints should be permitted only to prevent the escape of the defendant, to prevent the defendant from injuring others in the courtroom, or to maintain an orderly trial. People v. Dunn, 446 Mich. 409, 426, 521 N.W.2d 255 (1994). This Court reviews a decision to restrain a defendant for an abuse of discretion under the totality of the circumstances. Williams, supra at 314-315, 433 N.W.2d 356.

The trial court based its decision to restrain defendant during trial on information contained in documents maintained by the Department of Corrections and the Kalamazoo County Jail. Defendant's extensive institutional misconduct record, as detailed in these documents and as summarized by the trial court, demonstrates that defendant lacks respect for authority, lacks the discipline to conform his behavior to accepted norms, and has a tendency toward violence. Prior conduct of this nature amply supports the trial court's decision to require defendant to wear shackles and belly chains while in the courtroom. People v. Julian, 171 Mich.App. 153, 160-162, 429 N.W.2d 615 (1988).

IV

Defendant also argues that he was denied a fair trial by several instances of prosecutorial misconduct. We disagree.

Defendant contends that his Fifth Amendment right to remain silent was impermissibly infringed upon when the prosecutor questioned him concerning whether he had ever informed the police of his alibi defense. Defendant has forfeited appellate consideration of this issue.

A defendant waives his privilege against self-incrimination when he takes the stand and testifies. People v. Alexander, 188 Mich.App. 96, 102, 469 N.W.2d 10 (1991). Consequently, the defendant may be impeached with evidence of both prearrest and postarrest silence without violating the Fifth Amendment as long as the silence precedes the advising of the defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Alexander, supra. Where silence follows the receipt of Miranda warnings, however, the Fourteenth Amendment right to due process bars the use of such silence to impeach the defendant's exculpatory explanation at trial provided the defendant does not claim to have told the police the same version upon arrest, People v. Sutton (After Remand), 436 Mich. 575, 580, 592, 464 N.W.2d 276 (1990), or to have cooperated with the police, People v. Vanover, 200 Mich.App. 498, 503, 505 N.W.2d 21 (1993). Generally, when a prosecutor cross-examines a defendant regarding the defendant's failure to advance his exculpatory explanation upon arrest and the record is unclear regarding whether, and, if so, when, the defendant received his Miranda warnings, the procedure is to remand the case to the trial court for an evidentiary hearing. Alexander, supra at 105, 469 N.W.2d 10. The defendant may forfeit his right to an evidentiary hearing, however, if the defendant fails to allege sufficient facts to justify a remand, i.e., that any comment was made in the presence of the jury regarding the defendant's silence following the receipt of Miranda warnings. Weir v. Fletcher, 680 F.2d 437, 438 (C.A.6, 1982).

In the case before us, defendant not only failed to object to the prosecutor's cross-examination of defendant regarding his failure to inform the police of his alibi defense but also failed to set forth any allegations of fact in his appellate brief from which we can infer the need for a remand. Under these circumstances, we deem defendant's claim forfeited.

Defendant next contends that the prosecutor used her closing argument to shift the burden of proof to defendant to prove his alibi defense. Defendant failed to object below to the prosecutor's now-challenged remarks. Accordingly, defendant's claim of misconduct is not preserved for our review. People v. Gonzalez, 178 Mich.App. 526, 534-535, 444 N.W.2d 228 (1989). This Court will not review an unpreserved claim of prosecutorial misconduct unless the failure to do so will result in a miscarriage of justice. Id. No miscarriage of justice will result absent our review. When read in context, the prosecutor's remarks constitute permissible comment concerning the weakness of defendant's alibi defense and his failure to produce his corroborating alibi witnesses. People v. Holland, 179 Mich.App. 184, 190-192, 445 N.W.2d 206 (1989).

Likewise, defendant failed to preserve for appellate review his contention that the prosecutor shifted the burden of proof by suggesting to prospective jurors that defendant had to establish a reason to doubt his guilt. Gonzalez, supra. No miscarriage of justice will result absent review because the prosecutor conveyed no such concept of reasonable doubt to the array. People v. Jackson, 167 Mich.App. 388, 391, 421 N.W.2d 697 (1988).

Defendant also did not preserve for appeal his contention that the prosecutor improperly implied during argument that defendant had committed other robberies. Gonzalez, supra. Again, no miscarriage of justice will result absent appellate review. The prosecutor's now-challenged comments do not suggest that defendant committed other armed robberies for which he was not charged in this case. Instead, when read in context, the comments merely contain a reference to armed robbers in general and constitute an explanation that armed robbers, as a class, tend to commit crimes under circumstances that make their apprehension by police less likely. Moreover, the comments came in response to defendant's argument that the prosecutor had failed to present any physical evidence linking defendant to the armed robbery for which he was charged and that the prosecutor had presented only questionable identification testimony to establish defendant's involvement in the robbery. Under such circumstances, defendant's right to a fair trial was not compromised. People v. Lawton, 196 Mich.App. 341, 353-354, 492 N.W.2d 810 (1992); Gonzalez, supra.

V

Defendant argues that trial counsel rendered ineffective assistance. Defendant failed to create a testimonial record in the...