Found this case, though you might find it interesting. Situation involves a HIV positive inmate that spat on a gaurd and part of his conviction involved his spit being deemed a dangerous weapon, because he is HIV positive....
-1-
S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
FOR PUBLICATION
August 9, 2007
9:00 a.m.
v
No. 267867
Jackson Circuit Court
ANTOINE DESHAW ODOM,
LC No. 05-000667-FH
Defendant-Appellant.
Before: Whitbeck, C.J., and Talbot and Zahra, JJ.
PER CURIAM.
Defendant Antoine Odom appeals as of right from his jury conviction of three counts of
an inmate assaulting a prison employee.1 The trial court sentenced Odom as a fourth-offense
habitual offender,2 to concurrent terms of 5 to 15 years for each count. This case arose from an
incident in a prison when Odom, while in the prison cafeteria, allegedly punched and spat on
corrections officers. We affirm.
I. Basic Facts And Procedural History
Sergeant Katoshia Watson testified that on December 12, 2004, she was working as “yard
sergeant . . . responsible for yard activities and the chow lines, among other activities” at the
Charles Egeler Reception and Guidance Center in Jackson, Michigan. Sergeant Watson testified
that during meals, officers try to discourage the inmates from talking while in the chow line.
Sergeant Watson testified that while Odom was moving through the chow line he “stated
that he had a problem with a particular officer . . . related to a ticket” that he had received.
Odom testified that he was trying to talk to Sergeant Watson regarding an incident that had
occurred on December 10, 2004, in which his cell was “ransacked.” Sergeant Watson testified
that she responded by telling Odom that she “had over 300 more inmates that needed to be fed”
and that Odom was holding up her line. She told Odom that she would talk to him when she had
time. Odom stated that Watson was responsible for handling his complaint about the incident
because “she was working that block the day the incident occurred.” Sergeant Watson testified
1 MCL 750.197c(1).
2 MCL 769.12.
-2-
that Odom “was not exactly happy” to hear her answer to his request to talk to her. Sergeant
Watson said that Odom “brawned up” and his voice level went up as if he were very angry.
Sergeant Watson said that she was concerned about things escalating, so she alerted an officer
“to be mindful of this particular inmate” and allowed Odom to attempt to complete his meal.
After Odom ate, Sergeant Watson asked another officer to get Odom and bring him over to talk
to her. After discussing Odom’s complaint, Sergeant Watson indicated that there was nothing
she could do for him. Sergeant Watson testified that Odom was upset, and as he walked away,
he started to get loud and involve the other inmates. Sergeant Watson said that the other inmates
started egging Odom on. Sergeant Watson testified that at that time, she told Officer Kenneth
Ellis to handcuff Odom.
Sergeant Watson testified that at first she thought Odom was going to comply with the
cuffing, but instead Odom punched her in the face. Several officers confirmed that they saw
Odom strike Sergeant Watson. Sergeant Watson testified that Odom also spat in her face twice.
She said that Odom “kept coming at her” and that Officer Ellis tried to assist but “it was pretty
hard for [the two of them] to even handle him.” She stated that “probably about seven” officers
were needed to get Odom under control. Sergeant Watson testified that “an officer applied a
pressure point” to Odom and held him down, and eventually Odom was carried to the
segregation unit by eight officers. Sergeant Watson said that she then removed herself from the
situation, as is required by policy. Sergeant Watson testified that she was later informed by
medical personnel that Odom was HIV positive and had Hepatitis B. Odom denied hitting or
spitting on Sergeant Watson.
Officer Michael Marsh testified that after he saw Odom hit Sergeant Watson he went
towards Odom and then Odom punched him in the mouth. Corrections Officer Steven McCrum
testified that he saw Odom strike Officer Marsh in the face. Odom denied punching anybody in
the mouth.
Officer Douglas Culler testified that he assisted in carrying Odom from the chow hall.
Officer Culler testified that as he was getting Odom out of the chow hall he noticed that Odom
“appeared to be bleeding out of the corner of his mouth.” Officer Culler testified that while
carrying Odom into the segregation cell, Odom spit in his face. Officer Culler testified that he
was later put on a drug cocktail against possible HIV exposure. Odom denied spitting at Officer
Culler.
II. Sentence Scoring
A. Standard Of Review
Odom argues that he is entitled to resentencing because the trial court improperly scored
him 20 points for offense variable (OV) 1 for spitting his HIV positive blood on a corrections
officer.3 An unpreserved objection to a sentence variable scoring is reviewed for plain error.4
3 The record indicates that Odom may have also been infected with a strain of hepatitis.
4 People v Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004).
-3-
B. Analysis
OV 1 scores points for a Odom’s aggravated use of a weapon.5 Pursuant to the sentence
scoring guidelines, 20 points are scored for OV 1 when “[t]he victim was subjected or exposed to
a harmful biological substance, harmful biological device, harmful chemical substance, harmful
chemical device, harmful radioactive material, harmful radioactive device, incendiary device, or
explosive device.”6 Trial testimony indicated that Odom was HIV positive at the time of the
offense and that his mouth was bleeding as a result of his altercation with the officers.
Therefore, the trial court scored 20 points for Odom spitting out HIV positive blood as part of his
assault on a corrections officer.
Clarification of which substances qualify as “harmful biological substances” is a question
of first impression for this Court. The sentence scoring guidelines do not directly define the term
“harmful biological substance,” but instead direct us to the definition of that phrase as contained
in MCL 750.200h,7 which defines “harmful biological substance” as “a bacteria, virus, or other
microorganism or a toxic substance derived from or produced by an organism that can be used to
cause death, injury, or disease in humans, animals, or plants.”8 “Organism” is commonly
defined as “any individual life form considered as an entity.”9 We take judicial notice of the fact
that blood is commonly known to be a means of spreading HIV.10 We therefore conclude that
HIV infected blood is a “harmful biological substance,” as defined by Michigan statute, because
it is a substance produced by a human organism that contains a virus that can spread or cause
disease in humans.
Accordingly, we conclude that there was sufficient evidence to support a score of 20
points for OV 1 because of Odom’s exposure of the officer to a “harmful biological substance”
by spitting HIV positive blood on him.
5 MCL 777.31.
6 MCL 777.31(1)(b).
7 MCL 777.31(3)(a) states:
“Chemical irritant”, “chemical irritant device”, “harmful biological substance”,
“harmful biological device”, “harmful chemical substance”, “harmful chemical
device”, “harmful radioactive material”, “harmful radioactive device”, and
“imitation harmful substance or device” mean those terms as defined in . . . MCL
750.200h.
8 MCL 750.200h(g).
9 Random House Webster’s College Dictionary, p 920 (1997).
10 “HIV transmission can occur when blood . . . from an infected person enters the body of an
uninfected person.” How is HIV passed from one person to another?,
http://www.cdc.gov/hiv/resources/qa/qa16.htm (last accessed July 27, 2007).
-4-
III. Prosecutorial Misconduct
A. Standard Of Review
Odom argues that he is entitled to a new trial because of multiple instances of
prosecutorial misconduct. Unpreserved claims of prosecutorial misconduct may only be
reviewed for plain error.11 “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.”12 We review prosecutorial misconduct claims on a
case-by-case basis, looking at the prosecutor’s comments in context, and in light of the defense
arguments and their relationship to evidence admitted at trial.13
B. Analysis
First, Odom claims that the prosecutor improperly testified for Sergeant Watson. In
response to Sergeant Watson testifying that Odom “brawned up,” the prosecutor asked what she
meant by that, asking “You mean, he kind of, what, stands up straight and, kind of spreads
himself out a little?” We conclude that this was a reasonable question prompted by, and in direct
response to, Sergeant Watson’s testimony. There was nothing improper about the question,
which was only a request for a clarification.
Next, Odom claims that the prosecutor engaged in misconduct when he did not ask a
witness to fully explain what a “Critical Incident Report” was or what its various parts contained.
But Odom fails to explain how this alleged failure prejudiced his right to a fair trial.
Odom also claims that the prosecutor engaged in misconduct by not conceding at trial
that Odom’s letter to “Kabob” was meant to be a letter to “Kabot,” which is the prosecutor’s
name. But Odom himself failed to clarify this fact despite the prosecutor’s direct question to
Odom asking who “Kabob” was. Thus, we see no plain error here.
Finally, Odom claims that the prosecutor engaged in misconduct when he asked Odom to
comment regarding the truthfulness of other witnesses.14 But the record does not indicate that
the prosecutor ever asked Odom to comment on other witnesses’ truthfulness. Thus, there is no
merit to this claim.
In sum, nothing Odom complains of as prosecutorial misconduct actually qualifies as
misconduct.
11 People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003).
12 Id.
13 People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004).
14 See People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985).
-5-
IV. Effective Assistance Of Counsel
A. Standard Of Review
Odom argues that he is entitled to a new trial because he was denied the effective
assistance of counsel. Because Odom made no request for an evidentiary hearing or a motion for
a new trial, our review of Odom’s claim of ineffective assistance of counsel is limited to the
existing record.15
B. Analysis
The right to counsel is guaranteed by the United States and Michigan Constitutions.16
Where the issue is counsel’s performance, a defendant must show that (1) counsel’s performance
was below an objective standard of reasonableness under professional norms, and (2) there is a
reasonable probability that, if not for counsel’s errors, the result would have been different and
the result that did occur was fundamentally unfair or unreliable.17 Defense counsel is given wide
discretion in matters of trial strategy because many calculated risks may be necessary in order to
win difficult cases.18 There is therefore a strong presumption of effective counsel when it comes
to issues of trial strategy.19 We will not second-guess matters of strategy or use the benefit of
hindsight when assessing counsel’s competence.20
Odom first claims that he was denied the effective assistance of counsel by his defense
counsel’s failure to object to his sentencing score for OV 1. But as indicated above, OV 1 was
scored appropriately, so any objection would have been futile. There is no obligation for a
defense attorney to object where such objection would be futile.21
Odom also claims that he was denied effective assistance of counsel by his defense
counsel’s failure to object to various instances of prosecutorial misconduct. But as indicated
above, none of the conduct complained of by Odom amounted to prosecutorial misconduct, so
there was no basis for defense counsel to object.
Odom next claims that he was denied effective assistance of counsel by defense counsel’s
failure to make an initial opening statement. Although Odom’s counsel did not make an opening
statement after the prosecutor’s opening statement, Odom’s counsel did make an opening
15 People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Snider, 239 Mich App
393, 423; 608 NW2d 502 (2000).
16 US Const, Am VI; Const 1963, art 1, § 20.
17 Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v
Pickens, 446 Mich 298, 309, 309; 521 NW2d 797 (1994).
18 Pickens, supra at 325.
19 People v Mitchell, 454 Mich 145, 155; 560 NW2d 600 (1997).
20 People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).
21 People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).
-6-
statement right after the prosecution rested. The decision when to make an opening statement is
a matter of trial strategy where counsel is given wide discretion. Moreover, because Odom has
not indicated how this delay prejudiced him, there is no basis to conclude that defense counsel
was ineffective for delaying his opening statement.
Odom claims that he was denied effective assistance of counsel by his counsel’s failure to
object to false testimony given by various witnesses. But one cannot object simply because one
thinks a witness is lying. The veracity of a witness is a matter for the trier of fact to discern.22
Defense counsel was not ineffective for failing to object to testimony on this basis.
Odom also claims that his defense counsel was ineffective for failing to properly
investigate Odom’s case or prepare it for trial because defense counsel did not meet with Odom
before the preliminary hearing, did not go to the prison, and did not make any effort to locate and
talk to any other inmate witnesses. These claimed deficiencies are not apparent from the existing
record and are, thus, not subject to review by this Court.23
Odom claims his defense counsel was also ineffective for not pleading self-defense. But
Odom testified at trial that he never assaulted anyone. Therefore, Odom’s own testimony ran
contrary to a self-defense claim. Accordingly, defense counsel was not ineffective for failing to
pursue a theory not supported by Odom’s own testimony.
Finally, Odom claims defense counsel was ineffective for failing to request a change of
venue from a community that was full of people who knew or were related to corrections
officers, and who would then likely have a bias in favor of the corrections officers’ testimony in
this case. The trial court asked the pool of prospective jurors if any of them had friends or family
who worked at the DOC in Jackson County, and everyone who said they had a close connection
to someone who worked at a prison was eliminated from the jury. That is a proper and effective
means of dealing with the possible risk of bias. Odom’s counsel was not ineffective for failing to
request a change of venue.
In sum, nothing Odom complains of as ineffective assistance of counsel actually qualifies
as a deficiency in his representation.
V. Sufficiency Of The Evidence
A. Standard Of Review
Odom further argues that there was insufficient evidence to convict him of assaulting the
corrections officers because they lied about the assaults. To determine whether there was
sufficient evidence to support a conviction, we review the evidence de novo, in the light most
22 People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998).
23 Snider, supra at 423.
-7-
favorable to the prosecution, and decide whether any rational fact-finder could have found that
the essential elements of the crime were proven beyond a reasonable doubt.24
B. Analysis
MCL 750.197c provides in relevant part:
A person lawfully imprisoned in a . . . place of confinement established by law for
any term, . . . who, . . . through the use of violence, threats of violence or
dangerous weapons, assaults an employee of the place of confinement . . .
knowing the person to be an employee . . . is guilty of a felony[.]
This Court has held that the statute clearly applies to state prisons and guards employed therein.25
There is no dispute that the officers in this case were employees of the Department of
Corrections. There is also no dispute that Odom was lawfully incarcerated at the time of the
alleged assaults. There was testimony from multiple witnesses that Odom punched two of the
corrections officers in the face and spat at a third. Odom’s argument that there was not sufficient
evidence simply because of apparent contradictions in testimony or because of blanket assertions
that various witnesses were lying is without merit. “It is the province of the jury to determine
questions of fact and assess the credibility of witnesses,”26 and the trier of fact apparently found
these witnesses credible. Therefore, there was sufficient evidence that Odom assaulted three
corrections officers while incarcerated.
VI. Right To Self Representation
Odom argues that he is entitled to a new trial because he was denied his constitutional
right to represent himself. We disagree. Every defendant has the constitutional right to waive
the assistance of counsel and represent himself at trial.27 However, a defendant must make a
request for permission from the court to proceed pro se.28 Here, Odom never requested to
represent himself at trial. Therefore, there plainly was no violation of his right to selfrepresentation,
which could only have been invoked by Odom’s request.
24 People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999); People v Hawkins, 245 Mich
App 439, 457; 628 NW2d 105 (2001).
25 People v Wingo, 95 Mich App 101, 104; 290 NW2d 93 (1980); see MCL 750.197c(2)(a)
(defining “place of confinement” as “a correctional facility operated by the department of
corrections[.]”).
26 Lemmon, supra at 637.
27 People v Russell, 471 Mich 182, 188; 684 NW2d 745 (2004).
28 Id. at 190.
-8-
VII. Disclosure Of HIV Status
Odom argues that the release of his medical information to Officer Culler was illegal
because he never gave consent for the disclosure of his medical history and because the court did
not order him to have a blood test. Because this issue was not preserved below, we need only
review it for plain error.29
In accordance with state law,30 the DOC policy manual requires all prisoners to be tested
for HIV (unless tested already within three months).31 Ordinarily, HIV test results are
confidential.32 However, such records may be released under limited circumstances, as provided
by statute.33 One such circumstance is when the disclosure of HIV test results is made in
response to a court order and subpoena.34 Here, the record reflects that a subpoena and order
were made for disclosure of Odom’s medical records. Further, a DOC employee who is exposed
to the blood or body fluids of a prisoner may request that the prisoner be tested for HIV infection
or HBV infection, or both.35 Upon such request, the DOC may test the prisoner regardless of
consent,36 and the DOC must notify the requesting employee of the test results within two days
after the DOC obtains the results.37 Moreover, a physician or health officer may disclose
information pertaining to an individual who is HIV infected to an individual who is known by
the physician or health officer to be a contact of the individual who is HIV infected.38 Thus,
Odom’s claim of illegal disclosure of his medical information is without merit.
VIII. Right To Confrontation Of Witnesses
Odom claims that he was denied his constitutional right to confront the witnesses against
him when the trial court allowed a witness who did not testify during the preliminary
examination to testify at trial. Unpreserved claims of constitutional error may only be reviewed
for plain error affecting substantial rights.39
29 Callon, supra at 329.
30 See MCL 333.5129; MCL 791.267; MCL 791.267b.
31 Policy Directive 03.04.120(W) .
32 MCL 333.5131(1) and (2); MCL 600.2157.
33 MCL 333.5161(1).
34 MCL 333.5131(3).
35 MCL 791.267b(1).
36 MCL 791.267b(4).
37 MCL 791.267b(7); see also MCL 791.267(10).
38 MCL 333.5131(5)(b).
39 People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).
-9-
A defendant is entitled to confront the witnesses against him.40
The right to confront one’s accusers consists of four separate requirements: (1) a
face-to-face meeting of the defendant and the witnesses against him at trial; (2)
the witnesses should be competent to testify and their testimony is to be given
under oath or affirmation, thereby impressing upon them the seriousness of the
matter; (3) the witnesses are subject to cross-examination; and (4) the trier of fact
is afforded the opportunity to observe the witnesses’ demeanor.[41]
The witness in question, Sergeant Watson, gave testimony at trial subject to full crossexamination.
Accordingly, there was clearly no violation of Odom’s constitutional right to
confront Sergeant Watson regardless of her presence or absence at pre-trial proceedings.
IX. Right To An Impartial Tribunal
A. Standard Of Review
Odom claims that he was denied his constitutional right to an impartial tribunal because
the trial court was biased against him. A determination as to whether a party has received due
process is a question of law reviewed de novo.42 For a due process violation to result in reversal
of a criminal conviction, a defendant must prove prejudice to his defense.43
B. Analysis
Odom complains that the trial court was biased against him, mostly based on his
treatment during a preliminary hearing. But during that hearing, Odom repeatedly interrupted
both the trial court and his own attorney, often arguing with the trial court, to the point where the
trial court warned Odom to “act decently” or Odom would “sit next door and watch [the trial] on
TV.” In short, nothing Odom has complained of demonstrates any bias on the part of the trial
court and, to the contrary, demonstrates that the trial court acted with some degree of patience
with Odom’s outbursts in court. Thus, Odom was not denied his constitutional right to due
process before an impartial tribunal and is not entitled to relief on that basis.
X. Conclusion
In sum, we conclude as follows: 1) there was sufficient evidence on the record to support
the trial court’s score of 20 points for OV 1; 2) none of the prosecutor’s conduct complained of
by Odom amounted to misconduct; 3) none of defense counsel’s actions complained of by Odom
amounted to deficient representation; 4) there was sufficient evidence to support the jury’s
conclusion that Odom was an inmate who assaulted three corrections officers; 5) Odom was not
40 US Const, Am VI; Const 1963, art 1, § 20.
41 People v Pesquera, 244 Mich App 305, 309; 625 NW2d 407 (2001).
42 Reed v Reed, 265 Mich App 131, 157; 693 NW2d 825 (2005).
43 People v McGee, 258 Mich App 683, 700; 672 NW2d 191 (2003).
-10-
denied his right to represent himself because he never requested permission from the court to
exercise that right; 6) the release of Odom’s medical information was permissible under
Michigan law; 7) Odom was not denied his right to confrontation because Sergeant Watson was
at trial and Odom was able to cross-examine her; and 8) Odom failed to establish that the trial
court was biased against him.
Affirmed.
/s/ William C. Whitbeck
/s/ Michael J. Talbot
/s/ Brian K. Zahra
Legal Forums 
Favoured: 0
