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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOHNNY HENDERSON, Defendant-Appellant.

UNPUBLISHED February 16, 2006

No. 257771 Wayne Circuit Court LC No. 04-004262-01

Before: Donofrio, P.J., and Murphy and Kelly, JJ. PER CURIAM. Defendant appeals as of right his jury trial convictions for first-degree premeditated murder, MCL 750.316, possession of a firearm during the commission of a felony, MCL 750.227b, assault with intent to murder, MCL 750.83, and felon in possession of a firearm, MCL 750.224f. Defendant was sentenced to concurrent sentences of natural life in prison for the murder conviction, 30 to 60 years in prison for the assault with intent to murder conviction, and 40 to 60 months in prison for the felon in possession of a firearm conviction. Defendant also received a consecutive two-year sentence for the felony-firearm conviction. We affirm. Defendant first contends that the trial court provided an erroneous jury instruction on reasonable doubt. However, when the trial court asked the parties if they had any objections to the jury instructions, defense counsel stated, "I have no objections to the instructions, your honor." Because defendant waived any instructional error, any such error is extinguished. People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000); People v Matuszak, 263 Mich App 42, 57; 687 NW2d 342 (2004). Next, defendant argues that the prosecutor committed misconduct. Defendant did not object to any of the alleged prosecutorial misconduct. Therefore, this argument is unpreserved, Matuszak, supra at 48, and we review it for plain error, People v Carines, 460 Mich 750, 772; 597 NW2d 130 (1999). 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. People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004).

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Defendant first argues that the prosecutor improperly stated that there is "[n]o such thing as proof beyond a reasonable doubt," and that a reasonable doubt is one "which you can place a reason to." Considered in context, it appears that this was an isolated, accidental misstatement. The gravamen of the prosecutor's argument was clear: while the prosecution must prove defendant guilty beyond a reasonable doubt, the proof beyond all doubt standard does not apply. The repeated statements of the prosecutor, prefacing and following the misstatement, that the people had the burden of proving defendant guilty beyond a reasonable doubt, had the prophylactic effect of preventing any prejudice from the misstatement. Additionally, the trial court's reasonable doubt instructions to the jury cured any prejudice. Id. Therefore, we discern no error. Defendant next argues that the prosecutor's description of the Detroit Police Department as overworked, understaffed, and under funded amounted to misconduct because it appealed to jurors' self-interest as taxpayers. Defendant admits that "[d]efense counsel argued that the failure to test the victims for gunshot residue raised a reasonable doubt [regarding] whether the shooting had been at close-range." In response, the prosecutor argued: "You have the Detroit Police Department, overworked, understaffed, and underfunded [sic], and you're asking them to go do something that doesn't make sense." The prosecutor may respond to defense arguments, People v Rodriguez, 251 Mich App 10, 32; 650 NW2d 96 (2002), and need not make bland arguments, People v Williams, 265 Mich App 68, 71; 692 NW2d 722 (2005). Because the prosecutor was simply responding to the defense argument and arguing on the basis of the evidence, we discern no error in this statement. Defendant next argues that the prosecutor vouched for the truthfulness of the charges by implying that he had some special knowledge of the facts. Defendant objects to the following argument by the prosecutor: "The basic reason is, I'm trying to be here putting the facts forth. Wherever the facts go, that's where we get led. . . . I'm presenting facts." However, immediately following the quoted comments, the prosecutor stated: And again, also, I continue to use the term that we have to prove

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