People v. Numan

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LAMONT RASHEED NUMAN, Defendant-Appellant.

No. 357898

Court of Appeals of Michigan

January 26, 2023

UNPUBLISHED

Berrien Circuit Court LC No. 2020-002934-FH

Before: RIORDAN, P.J., and MARKEY and REDFORD, JJ.

PER CURIAM.

Defendant Lamont Rasheed Numan, appeals by right his convictions of unarmed robbery, MCL 750.530; assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84; unlawful imprisonment, MCL 750.349b; third-offense domestic violence (DV-3), MCL 750.81(5); interference with an electronic communication device, MCL 750.540(5)(b); and malicious destruction of personal property under $200, MCL 750.377a(1)(d). Defendant was sentenced as a fourth habitual offender, MCL 769.12, to concurrent prison terms of 90 months to 15 years for unarmed robbery and unlawful imprisonment, 90 months to 10 years for AWIGBH, 24 months to 4 years for DV-3 and interference with an electronic communication device, and 93 days in jail for malicious destruction of personal property under $200.

On appeal, defendant argues that the trial court erred when it allowed a biased juror to remain on the panel or alternatively, that defense counsel provided ineffective assistance by not challenging the juror for cause. Defendant further argues that the trial court improperly allowed evidence of prior convictions for domestic violence. Finally defendant argues that a $200 fine imposed by the trial court for the unarmed-robbery conviction was not authorized by statute and must be vacated. We affirm defendant's convictions but vacate the fine and remand the case to the trial court accordingly.

I. FACTS

This case stems from an incident in which defendant assaulted his girlfriend, VL, as she came home to her apartment after shopping with a male friend. VL indicated that defendant became progressively angrier the longer she was out shopping. VL testified that after her friend dropped her off and VL headed inside, defendant appeared from behind a tree, pushed his way in behind her, then proceeded to slap her and hit her head against a wall multiple times. VL also testified that the arguing continued because defendant accused her of having a relationship with the friend with whom VL was shopping. Defendant punched VL in her right eye, and he took her cell phone from her hand and broke it. Defendant also pulled VL's purse off her and took money and marijuana out of it. VL stated that the assault lasted two hours and that she yelled and attempted to exit the door multiple times. VL suffered broken bones under her right eye, a broken blood vessel in her right eye, and head injuries. The assault rendered VL blind in her right eye.

At trial, a 14-member jury was seated after 20 potential panelists were excused for cause or through peremptory challenges. The trial court believed that only one juror from the panel remained uncalled when the final panel was selected. At trial, during the presentation of proofs, the court admitted certified records of defendant's 2012 and 2019 domestic-violence convictions over his objections. VL also testified regarding other incidents of violence by the defendant against her. The jury found defendant guilty as charged.

The trial court sentenced defendant as noted above. The trial court also imposed a fine of $200 on only one count, unarmed robbery, as well as court costs and fees. The prosecution did not seek restitution. Defendant appealed as of right to this Court.

II. JUROR BIAS

Defendant first argues on appeal that he was denied his constitutional right to an impartial jury when the trial court allowed Juror 32 to remain on the panel. According to defendant, the juror's answers showed that she was biased and possessed a "state of mind that would interfere with her ability to enter a just verdict." We disagree.

When an issue is unpreserved, this Court reviews the record for plain error affecting the defendant's substantial rights. People v Carines, 460 Mich. 750, 763, 764; 597 N.W.2d 130 (1999). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. at 763 (internal citation omitted). Further, "[t]his Court defers to the trial court's superior ability to assess from a venireman's demeanor whether the person would be impartial." People v Williams, 241 Mich.App. 519, 522; 616 N.W.2d 710 (2000).

"[A] criminal defendant has a constitutional right to be tried by an impartial jury[.]" People v Miller, 482 Mich. 540, 547; 759 N.W.2d 850 (2008). "If a party shows that a prospective juror comes within one of the categories enumerated in [MCR 2.511(D)], then the trial court is without discretion to retain that juror, who must be excused for cause. Otherwise, the decision to excuse for cause is within the discretion of the trial court." People v Walker, 162 Mich.App. 60, 64; 412 N.W.2d 244 (1987) (internal citations omitted). See MCR 6.412(D)(2). Grounds for challenging a juror include but are not limited to when the juror:

(2) is biased for or against a party or attorney; (3) shows a state of mind that will prevent the person from rendering a just verdict, or has formed a positive opinion on the facts of the case or on what the outcome should be; [or]

(4) has opinions or conscientious scruples that would improperly influence the person's verdict .... [MCR 2.511(D).]

"Jurors are presumptively competent and impartial, and the party alleging the disqualification bears the burden of proving its existence." People v Johnson, 245 Mich.App. 243, 256; 631 N.W.2d 1 (2000). "The burden is on the defendant to establish that the juror was not impartial or at least that the juror's impartiality is in reasonable doubt." Miller, 482 Mich. at 550.

Strong feelings coupled with an inability to set aside those feelings has been found to provide cause for juror excusal. See Poet v Traverse City Osteopathic Hosp, 433 Mich. 228, 249250, 252 n 20; 445 N.W.2d 115 (1989). In Walker, 162 Mich.App. at 64-65, however, a juror's position as a police officer, without more, was insufficient to create an inference of bias. Similarly, in People v Lee, 212 Mich.App. 228, 251; 537 N.W.2d 233 (1995), it was not error for the trial court to retain a juror who had closely followed a previous trial in the same matter, which took place years earlier. This Court stated that

Juror F had not formed a definite opinion about defendant's guilt at the time of trial and promised to keep an open mind. Although she previously believed that defendant was guilty at the time of the first trial, she did not recall details of the case. It therefore would not have been difficult for Juror F to set aside her previous opinion. The trial court was also in the best position to judge, on the basis of their credibility and demeanor, whether Juror F and the other members of the venire could render a fair and impartial verdict. Legal cause for Juror F's dismissal was not shown. [Id.]

Further, "[j]urors are presumed to follow the court's instructions, and instructions are presumed to cure most errors." People v Abraham, 256 Mich.App. 265, 279; 622 N.W.2d 836 (2003). "A juror who expresses an opinion referring to some circumstance of the case which is not positive in character, but swears he can render an impartial verdict, may not be challenged for cause." People v Roupe, 150 Mich.App. 469, 474; 389 N.W.2d 449 (1986); see MCL 768.10.

In this case, defendant has not overcome the presumption that Juror 32 executed her duties to be impartial as instructed by the trial court, nor has defendant demonstrated legal error requiring reversal.

The prosecution asked and learned that Juror 32 had never been a victim of crime but that her daughter "was attacked once at college." When asked if that experience would prevent her from sitting on a criminal case involving domestic violence, Juror 32 answered: "I'd like to say it doesn't. It's hard to say for sure."

Defense counsel began voir dire of Juror 32 by asking what types of evidence she felt would be helpful and, specifically, if having fingerprints would help. Juror 32 answered that she did not think so "[b]ecause they could have people in and out of their house that they didn't necessarily do anything." Defense counsel's dialogue with Juror 32 continued as follows:

Q. Can you think of a reason why someone who's abused might lie about the attacker?

A. Yeah. Out of fear, I guess.

Q. Okay. If Mr. Numan chooses not to take the witness stand, will that be difficult for you in rendering your verdict?

A. Seems to me like he'd wanna have a say that if he-but I-yeah.

Q. Why might an innocent person chose [sic] not to testify?

A. I don't know. I guess if I was innocent, I would wanna have my say, so I could let people know I was innocent.

Q. Could one reason be that maybe the State is trying to twist their words?

A. Yeah.

* * * Q. Is Mr. Numan innocent now or is he guilty because he's charged with a crime?

A. I-well, the-we live in a system that says he's innocent. So, yeah. Q. Well, our system says he's innocent. Is he? Or do you think he might be guilty?

A. I think it's hard to not think that a little bit if you got this far that they couldn't work it out between the two of 'em.

Q. Do you think that if someone's arrested of a crime, they're probably guilty?

A. Probably. I (inaudible).

* * *

Q. Okay. I guess I'm the sole lefty here. Question I asked a bunch of jurors earlier. You see a car pulled over by the police, you ever think they're-"hey, what they'd

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