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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JAIRUS ANDRAE PERKINS, Defendant-Appellant.

UNPUBLISHED May 16, 2006

No. 259865 Wayne Circuit Court LC No. 04-008291-02

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JUANITA MICHELLE-LYNN ELAM, Defendant-Appellant. No. 259866 Wayne Circuit Court LC No. 04-008291-03

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOHN HENRY RAY, Defendant-Appellant. No. 260161 Wayne Circuit Court LC No. 04-008291-01

Before: Smolenski, P.J., and Owens and Donofrio, JJ. PER CURIAM. In these consolidated appeals, defendants appeal as of right from their respective jury trial convictions. All three defendants were tried together after the trial court denied pretrial motions

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for separate trials. Defendants were involved in the killing of a man and a pregnant woman during the course of a robbery at a residence in Romulus, Michigan in July 2004. Defendant Perkins was convicted and sentenced as follows: two counts of first-degree premeditated murder, MCL 750.316(1)(a), vacated sentence of life without parole; killing an unborn child, MCL 750.322, 10 to 15 years'; two counts of first-degree felony murder, MCL 750.316(1)(b), life without parole; two counts of assault with intent to murder, MCL 750.83, 225 months' to 80 years'; two counts of armed robbery, MCL 750.529, 225 months' to 80 years'; first-degree home invasion, MCL 750.110a(2), vacated sentence of 12 to 20 years'; possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b, 2 years' imprisonment. Because we are not persuaded by any of defendant Perkins's arguments on appeal, we affirm his convictions and sentences. Defendant Elam was convicted and sentenced as follows: two counts of first-degree premeditated murder, MCL 750.316(1)(a), vacated sentence of life without parole; killing an unborn child, MCL 750.322, 10 to 14 years'; two counts of first-degree felony murder, MCL 750.316(1)(b), life without parole; two counts of assault with intent to murder, MCL 750.83, 20 to 60 years'; two counts of armed robbery, MCL 750.529, 120 months' to 60 years'; and firstdegree home invasion, MCL 750.110a(2), vacated sentence of 10 to 20 years. Because we are not persuaded by any of defendant Elam's arguments on appeal, we affirm her convictions and sentences. Defendant Ray was convicted and sentenced as follows: two counts of second-degree murder, MCL 750.317, vacated sentence of life without parole; two counts of first-degree felony murder, MCL 750.316(1)(b), life without parole; killing an unborn child, MCL 750.322, 228 months' to 60 years'; two counts of assault with intent to do great bodily harm less than murder, MCL 750.84, 228 months' to 80 years'; two counts of armed robbery, MCL 750.529, 45 to 80 years'; first-degree home invasion, MCL 750.110a(2), 10 to 50 years'; felon in possession of a firearm, MCL 750.224f, 10 to 25 years'; felony firearm MCL 750.227b, 2 years' imprisonment. Because we are not persuaded by any of defendant Ray's arguments on appeal, we affirm his convictions and sentences, but we remand for correction of his judgment of sentence to reflect that the trial court vacated his conviction and sentence for first-degree home invasion. I. Substantive Facts Defendant Perkins, aged twenty-one, his girlfriend, defendant Elam, aged twenty-eight, and defendant Ray, aged thirty-eight, were involved in the killing of a man, Deshone Douglas Moore, aged twenty-eight, and a pregnant woman, Amanda Zarbaugh, aged twenty, and her unborn child, during the course of an armed robbery at Zarbaugh's residence in Romulus, Michigan in July 2004. Defendant Elam was already in the house with the two victims when defendants Perkins and Ray arrived with guns. Defendant Perkins and Ray encountered Christopher Straughter and Ebonie Booker exiting the house when they arrived. Defendant Perkins ran into the house just prior to fatal shots being heard, and defendant Ray stayed outside and held the witnesses at gunpoint. I. Defendant Perkins A. -2-


Defendant Perkins first argues that the magistrate abused its discretion when it denied his request for a lineup on the day of the preliminary examination because the witnesses' identifications were material and questionable. A trial court's decision to deny a request for a lineup is reviewed for abuse of discretion. People v McAllister, 241 Mich App 466, 471; 616 NW2d 203 (2000). A decision constitutes an abuse of discretion where it is so grossly violative of fact and logic that it evidences perversity of will, defiance of judgment, and the exercise of passion and/or bias. Id. "Michigan law permits a trial court to grant a defendant's motion for a lineup if the court chooses to do so in an exercise of its discretion." People v Gwinn, 111 Mich App 223, 249; 314 NW2d 562 (1981). In making its decision, the trial court should consider the benefits to the accused, the burden to the prosecution, police, courts, and witnesses, and the timeliness of the motion. Id. at 249. "A right to a lineup arises when eyewitness identification has been shown to be a material issue and when there is a reasonable likelihood of mistaken identification that a lineup would tend to resolve." McAllister, supra at 471. In Gwinn, supra, there was no reasonable likelihood of misidentification where the witness spent one to two hours with her attacker and where she had adequate light in which to observe him. Gwinn, supra at 250. In McAllister, supra, this Court also found that the time the witness spent with his attacker prior to the assault, a few minutes at best, was sufficient to ensure that there was not a reasonable likelihood of mistaken identification. McAllister, supra at 471. There were two witnesses in this case, Straughter who was certain he could identify defendants, and Booker, who stated that she would not be able to identify anyone. Straughter in fact did identify the perpetrators in a corporeal lineup and a photographic lineup. Since Straughter had seen defendant Perkins less than twenty-four hours before the crimes, had in fact met and shook hands with defendant Perkins while he was in a silver Explorer, the same vehicle used the night of the crimes, there was no reasonable likelihood of misidentification of defendant Perkins. A neighbor had reported seeing a silver Explorer at the scene of the crime on the night in question, and it was known that defendant Perkins was romantically linked to defendant Elam who had introduced Straughter and defendant Perkins earlier that day. These were independent bases further supporting defendant Perkins's identification. Based on Straughter's knowledge and familiarity with defendant Perkins before the crimes and the opportunity he had to observe him and interact with him during the crimes, we conclude that the trial court had significant evidence on which to base its ruling that there was not a reasonable likelihood of mistaken identification in this case even considering Booker's late in-court identification. The trial court did not abuse its discretion by denying defendant Perkins's motion for a lineup. B. Defendant Perkins next argues that the trial court denied his right to a fair and impartial jury when it performed only a cursory voir dire that was not adequate to provide for the intelligent exercise of both challenges for cause and peremptory challenges. Defendant Ray's counsel lodged an objection to the trial court's conduct of the voir dire process. Brother counsel's general objection also pertains to defendant Perkins. However, since defendant Perkins made no specific objections thus allowing the trial court to address the objection on the record, we review this issue for plain error affecting defendant Perkins's substantial rights. -3-


People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). It is within the trial court's discretion to conduct voir dire itself, and, accordingly, this Court reviews questions concerning the conduct or scope of voir dire for an abuse of discretion. MCR 6.412(C)(1); People v Tyburski (Tyburski II), 445 Mich 606, 618-619; 518 NW2d 441 (1994); People v Sawyer, 215 Mich App 183, 186-187; 545 NW2d 6 (1996). "The function of voir dire is to elicit sufficient information from prospective jurors to enable the trial court and counsel to determine who should be disqualified from service on the basis of an inability to render decisions impartially." Sawyer, supra at 186. What constitutes acceptable and unacceptable voir dire practice "does not lend itself to hard and fast rules." Tyburski II, supra at 623. Instead, trial courts "should be allowed wide discretion in the manner they employ to achieve the goal of an impartial jury." Id. If a trial court undertakes to conduct voir dire itself, it must ask "probing questions" and "consider relevant questions posed by the attorneys." People v Tyburski (Tyburski I), 196 Mich App 576, 589; 494 NW2d 20 (1992). Therefore, in reviewing the trial court's conduct of voir dire, this Court must determine whether the trial court conducted a voir dire "sufficiently probing . . . to uncover potential juror bias." Tyburski II, supra at 609. A trial court abuses its discretion when it limits voir dire to exclude an adequate showing of facts that could be employed in exercising challenges for cause and peremptory challenges. Tyburski II, supra at 619. Our review of the record reveals that the trial court's conduct of voir dire was sufficiently probing to uncover potential juror bias. The trial court introduced to the potential jurors all the parties, attorneys, and expected witnesses, and asked if any of them knew any of these people, and whether that would interfere with their judgment. The trial court explored whether any of the potential jurors had been or had family members who had been the victim of a crime or accused of committing a crime, and whether that would interfere with their judgment. The trial court inquired whether any potential juror had a bias either for or against the police. The trial court explained the presumption of innocence and explored whether any potential juror could not accept this tenet. The trial court questioned the potential jurors to make sure that they all could return a verdict of guilty if the prosecution proved its case beyond a reasonable doubt, and conversely that they all could return a verdict of not guilty if it did not. The trial court individually questioned each potential juror regarding their profession, marital status, and if any, spouse's profession. The trial court inquired whether there was any other reason why the potential jurors could not fairly sit and hear the case and decide it based solely on the evidence presented in court. Further , the trial court repeatedly inquired of counsel if they had anything to add. This voir dire was not merely a "perfunctory exercise," Tyburski I, supra at 591, was sufficiently probing to uncover potential juror bias and contrary to defendant Perkins's argument, and was adequate to provide for the intelligent exercise of challenges for cause and peremptory challenges. The trial court did not abuse its discretion when it performed voir dire, and defendant's substantial right were not violated in the voir dire process. C. Defendant Perkins argues that he was denied his right to a fair trial due to prosecutorial misconduct, ineffective assistance of counsel, the trial court's actions, as well as any cumulative effect of all three combined. Defendant Perkins specifically argues the prosecutor denied him -4-


his due process right to a fair trial when she engaged in various instances of misconduct. Because defendant Perkins failed to preserve his assertions of prosecutorial misconduct, this Court reviews for plain outcome-determinative error affecting defendant's substantial rights. People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003). The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). Prosecutorial misconduct issues are decided on a case-by-case basis, and the reviewing court must examine the record and evaluate a prosecutor's remarks in context. Id. Defendant Perkins first asserts that the prosecutor injected highly prejudicial evidence of defendant Perkins's alleged involvement in drug trafficking when asking questions of witnesses Kenneth Bolton and Jarrell James. Defendant Perkins points to two questions in a lengthy trial regarding defendant Perkins's style of dress, the car he drove, and whether he was legitimately employed. Defendant Perkins has not established bad faith or prejudice as a result of these two questions. "The prosecutor's good-faith effort to admit evidence does not constitute misconduct." People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003), citing People v Noble, 238 Mich App 647, 660-661; 608 NW2d 123 (1999). Defendant Perkins next asserts that the prosecutor intentionally humiliated him when she compared him to the 9/11 terrorists during her closing argument. The challenged comments are as follows: Prosecutor: And finally, ladies and gentlemen, it's insulting for any counsel , for all three counsel, in behalf of all three Defendants to somehow suggest that this truly was outside the scope, like you just committed a robbery, and somehow one person decided to do all these murders. Ladies and gentlemen, the best analogy I can give for that is when somebody flew that airplane into the World Trade Center, they flew it on

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