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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DEON JONTAY GARDNER, Defendant-Appellant.

UNPUBLISHED October 9, 2007

No. 267952 Ingham Circuit Court LC No. 04-000560-FC

Before: Jansen, P.J., and Fitzgerald and Markey, JJ. PER CURIAM. Defendant appeals by right from his convictions following a jury trial of assault with intent to rob while armed, MCL 750.89, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced to imprisonment of 8 to 15 years for the assault with intent to rob while armed conviction consecutive to imprisonment of 2 years for the felony-firearm conviction. We affirm. Defendant first argues that the prosecutor engaged in misconduct when he inappropriately sought to elicit sympathy for the victim by asking him irrelevant personal questions. Prosecutorial misconduct claims are reviewed on a case-by-case basis, considering the prosecutor's comments in context and in light of the defense arguments and their relationship to evidence admitted at trial. People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004). Defendant's failure to properly preserve this issue means that we review it for plain error affecting substantial rights. "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." People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003). We agree with defendant that the victim's smoking and drinking habits are not relevant to any of the issues at trial. But there is no reason to believe that a jury would find more trustworthy a witness who does not smoke or drink much. Conversely, the victim's medical condition was relevant because it explained the origin of his tax problem and thus appropriately responded to defendant's theory of the case. Therefore, the testimony regarding those issues did not result in plain error affecting defendant's substantial rights. Further, defendant has not shown that he was either actually innocent or that the prosecutor's actions seriously undermined the fairness, integrity, or public reputation of the judicial proceedings.

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Defendant also argues that he was denied effective assistance of counsel when his counsel failed to object to any of the prosecutor's alleged misconduct and when counsel elicited from defendant that he was on parole from his conviction for selling cocaine. Our review of this challenge is limited to the existing record. Thomas, supra at 456. The right to counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1,

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