People v. Marney

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. THOMAS LEE MARNEY SR., Defendant-Appellant.

No. 359845

Court of Appeals of Michigan

December 21, 2023

UNPUBLISHED

Ingham Circuit Court LC No. 19-000879-FH

Before: RIORDAN, P.J., and MURRAY and M. J. KELLY, JJ.

PER CURIAM.

Defendant appeals as of right from his jury trial conviction and sentence for one count of assault with intent to do great bodily harm less than murder or by strangulation (AWIGBH) MCL 750.84. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 48 to 240 months' imprisonment, awarded 21 days of jail credit, and ordered to pay $500 in court costs. In addition to challenging his conviction and sentence, defendant challenges the trial court's orders denying his motion to correct an invalid sentence and his motion for resentencing. For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

This case arises from a domestic assault. In November 2018 defendant and complaining witness, DS, lived together and were in an intimate relationship. On the day of the assault, DS and defendant were napping in defendant's bedroom when DS woke up and went to the bathroom, waking defendant. DS returned to defendant's bedroom, informing him she needed to pick up her children from their father's house. Defendant, irritable and angry from being woken up, began questioning DS about why she was out of bed and accused her of poisoning him. DS, seeking to avoid a confrontation, went to the spare bedroom where she kept her belongings. Defendant followed DS into the spare bedroom and began choking her on the bed on and off for about four minutes.

DS then left the spare bedroom and went into the living room to create a plan to escape. Defendant followed DS and choked her a second time, for about 45 seconds, while she was sitting in a recliner. Defendant stopped choking DS, but threatened to release his dog on her. While defendant was threatening her, DS used an emergency feature on her cellphone to call 911 from her sweatshirt pocket. Without speaking to the 911 operator, DS hung up. When the 911 operator called DS back, she pretended she was speaking with her children's father and was able to covertly request help and provide the operator with defendant's address. Shortly thereafter, police arrived at defendant's home and questioned DS and defendant separately. DS eventually told police defendant choked her, and defendant was taken into custody.

Defendant was charged and bound over for AWIGBH after waiving the preliminary examination. Defendant was also charged as a fourth-offense habitual offender based on his prior felony convictions, including: a May 2013 conviction for delivering or manufacturing marijuana, MCL 333.7401(2)(d)(iii); a May 2005 conviction for felonious assault, MCL 750.82; and a May 2005 conviction for carrying a concealed weapon, MCL 750.227. Defendant waived his arraignment and pleaded not guilty to AWIGBH. Notably, defendant never objected to the felony information.

During the jury trial, DS, the 911 operator, the responding officers, and defendant testified. In between witness testimony, this exchange occurred:

Ms. Nelson [the prosecutor]: Thank you[,] Your Honor[,] and if I may prior to [calling my next witness] I just wanted to place on the record an issue. I know the defendant has been making a number of faces, shaking his head especially when being asked question of the last witness, specifically looking at jurors. I would just ask the Court direct him to not try to influence or act out-(unintelligible).

Mr. Maddaloni [defense counsel]: I'm objecting at the fact that she even brought it up. I mean it's not anything that is out of [the] ordinary, its-

The Court: -okay-

Mr. Maddaloni: -to me it was done to prejudice my client even further.

The Court: Alright, thank you. You may call your witness.

After closing arguments, the trial court issued jury instructions, specifically instructing jurors to only consider properly admitted evidence when deciding their verdict, which included informing the jury that: "The lawyers' statements and arguments are also not evidence. They are only meant to help you understand the evidence and each side's legal theories. You should only accept things the lawyers say that are supported by the evidence or by your own common sense and general knowledge." Based on the evidence presented at trial, the jury found defendant guilty of AWIGBH beyond a reasonable doubt.

During sentencing, the parties reviewed the presentence investigation report (PSIR). The PSIR indicates defendant had an extensive criminal history, which included several felony convictions, such as: two convictions for larceny from a person, MCL 750.356, and one conviction for felonious assault in April 1997; one conviction for absconding or forfeiting bond, MCL 750.199a, in August 1998; one conviction for possession of a controlled substance, MCL 333.7403, in May 2000; one conviction for felon in possession of a firearm, MCL 750.224f, in October 2005; and one conviction for delivering or manufacturing marijuana in March 2013. Defendant denied having any additions, deletions, or corrections to the PSIR and stated he had no objections to the scoring of the guidelines. Based on defendant's criminal history and the seriousness of his crimes against DS, the trial court sentenced defendant to 48 to 240 months' imprisonment and imposed $500 in court costs. This appeal followed.

While defendant's appeal was pending before this Court, defendant moved to correct an invalid sentence, arguing the trial court's order of $500 in court costs must be vacated because MCL 769.1k(1)(b)(iii) is unconstitutional on the ground that it: (1) creates pressure on trial court judges to convict criminal defendants to ensure the courts are adequately funded, which in turn violated defendant's due-process right to a neutral arbiter; and, (2) violates the separation-of-powers doctrine because the Legislature's enactment of MCL 769.1k(1)(b)(iii) prevents the judiciary from maintaining neutrality in criminal proceedings and promoting public confidence in the impartiality of the judiciary. The trial court denied defendant's motion.

Defendant also moved to remand to the trial court to address whether he was entitled to resentencing because he claimed he should not have been sentenced as a fourth-offense habitual offender. This Court granted defendant's motion. People v Marney, unpublished order of the Court of Appeals, entered April 3, 2023 (Docket No. 359845). Before the trial court, defendant argued he was entitled to resentencing because the fourth-offense habitual offender notice in the felony information contained inaccurate information. Specifically, defendant claimed the felony information incorrectly stated he was convicted of felonious assault in May 2005, when he was actually convicted in April 1997, and listed a conviction for carrying a concealed weapon despite that defendant had never been convicted of this crime. While defendant conceded he had other felony convictions that could have been used to enhance his sentence, because the fourth-offense habitual offender notice was defective, he contended the prosecutor could not rely on his other convictions. Defendant also argued he was entitled to resentencing because his sentence was based on inaccurate information in the felony information. Further, defendant asserted he was denied the effective assistance of counsel because had his counsel objected to the fourth-offense habitual offender enhancement, his sentencing guidelines and maximum possible sentence would have been lower.

During the hearing, defendant argued there was no proof of service filed for the fourthoffense habitual offender notice in violation of MCL 769.13, which, when considered with the defective notice, entitled him to resentencing. Additionally, because he raised his resentencing arguments in his motion to remand, as required by the applicable statute, MCL 769.34(10), defendant contended his arguments were not waived. In response, the prosecutor stated she verified defendant was served with a copy of the felony information and asserted defendant's argument was waived under MCL 767.76. The trial court denied defendant's motion because: (1) it only relied on the PSIR during sentencing, not the felony information; (2) defendant waived his claim the fourth-offense habitual offender notice was defective by failing to object before trial; and (3) even if defendant had objected, defendant could not prove he was prejudiced because the prosecutor could have substituted one of defendant's four other felony convictions to rectify any error.

II. PROSECUTORIAL ERROR^[1]

Defendant argues he is entitled to a new trial because the prosecutor's statements, made in front of the jury, were prejudicial and deprived him of a fair and impartial trial.

A. STANDARDS OF REVIEW

Defendant objected to the prosecutor's statements during trial, therefore, his argument is preserved for appellate review. People v Thomas, 260 Mich.App. 450, 453-454; 678 N.W.2d 631 (2004). Preserved issues of prosecutorial error are reviewed de novo to determine whether a defendant was denied a fair and impartial trial. Id. at 453. "Issues of prosecutorial misconduct are decided case by case, and this Court must examine the entire record and evaluate a prosecutor's remarks in context." People v Dobek, 274 Mich.App. 58, 64; 732 N.W.2d 546 (2007). An alleged violation of a criminal defendant's due-process rights presents a constitutional question and is also reviewed de novo. People v Wilder, 485 Mich. 35, 40; 780 N.W.2d 265 (2010).

B. ANALYSIS

The United States Constitution and Michigan Constitution each guarantee a criminal defendant receives due...