People of Michigan v. Pierre Lamar Taylor ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 6, 2016
Plaintiff-Appellee,
v No. 310771
Wayne Circuit Court
PIERRE LAMAR TAYLOR, LC No. 11-009674-01-FC
Defendant-Appellant.
Before: SAAD, P.J., and JANSEN and M. J. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of involuntary manslaughter, MCL
750.321, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. Defendant was sentenced to 6 to 15 years’ imprisonment for his involuntary
manslaughter conviction, and two years’ imprisonment for his felony-firearm conviction. We
affirm.
After defendant was convicted, the trial court granted defendant’s motion for a new trial
for the reason that the prosecutor had knowingly presented false testimony. In a prior appeal by
the prosecutor, this Court reversed that order and reinstated defendant’s convictions and
sentences. People v Taylor, unpublished opinion per curiam of the Court of Appeals, issued
August 21, 2014 (Docket No. 318633). The trial court thereafter held an evidentiary hearing
regarding defendant’s claims of ineffective assistance of counsel. After the hearing, the court
found that defendant was not entitled to a new trial on those claims.
The underlying facts are summarized in this Court’s previous opinion as follows:
This case arises from a shooting death in Detroit on June 12, 2011 at the
scene of a street race on Epworth Street, a two-lane street in Detroit. The victim,
Amran Najy, and four other passengers, arrived at the scene of the street race in a
2009 Chevrolet Impala. Nagy [sic] was killed when a bullet was fired into the
vehicle. An officer on the scene said that Najy was “slumped over, stuck in the
vehicle.” Another officer observed that a bullet “had gone through the trunk lid
into the rear passenger seat on the . . . passenger side.” Based on the testimony of
several witnesses at trial, a jury determined defendant to be the shooter.
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One witness, Robert Hanson, testified at trial that he frequently attended
the street races, and that he saw the Impala arrive at the scene. Further, as the
driver of the car made a U-turn on Epworth Street in order to clear the way for the
street race, Hanson saw defendant pull out a black gun and fire it toward the car.
Hanson identified defendant at trial, saying that he could “never forget his face”
because defendant “shot one of [Hanson’s] friends that [he hung] out with every
day.” Hanson, who was standing 18 to 20 feet from defendant, testified that he
saw defendant pick up the shell, throw it to his right, and tell a friend, “Oh, he’s
gonna be mad in the morning when he look[s] at that size of that bullet hole in his
car.” Approximately 10 minutes later, Hanson received a phone call and went to
the intersection of Linwood Street and West Grand Boulevard, where he saw the
Impala “mangled” on the median.
Two weeks later, Hanson saw defendant at the street races, and sent a text
message to a detective with the license plate number of the car in which defendant
arrived. Hanson identified defendant in a photographic lineup on July 24, 2011.
[Taylor, unpub op at 1-2 (second, third, and fourth alterations in original).]
During an evidentiary hearing held after trial in connection with defendant’s claim that the
prosecution knowingly presented false testimony, Hanson admitted that he had lied under oath at
trial. Id. at 4. In his police statement, Hanson stated that he had not personally seen anyone with
a gun; rather, his cousin, Joseph Saldivar, pointed out defendant to Hanson as the man who fired
at the Impala. Id. at 2. The trial court granted defendant’s motion for a new trial, concluding
that the prosecutor had knowingly presented false testimony. Id. at 4-5. However, on appeal,
this Court reversed the trial court’s order and remanded for reinstatement of defendant’s
convictions. Id. at 7. This Court concluded that the trial court clearly erred when it found the
prosecutor knew that Hanson’s trial testimony was false, and it also concluded that Hanson’s
testimony was not material, given that four other witnesses testified at trial and identified
defendant as the shooter. Id. at 5-7. Our Supreme Court denied defendant’s application for
leave to appeal. People v Taylor, 497 Mich. 1003 (2015).
The trial court then conducted an evidentiary hearing, spanning several months,
concerning defendant’s claims that he received ineffective assistance of counsel. After hearing
testimony from several witnesses, the trial court concluded that defendant was not entitled to a
new trial. Defendant now appeals, arguing (1) that trial counsel was ineffective for a variety of
reasons, and (2) this Court erred when it reversed the trial court’s order granting him a new trial
on the basis that the prosecutor knowingly presented false testimony. We conclude that
defendant is not entitled to a new trial.
I. INEFFECTIVE ASSISTANCE OF COUNSEL1
1
In his initial brief on appeal, defendant argues that trial counsel was ineffective for failing to
move to suppress a video recording and photographs taken from that recording. However, in his
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“The question whether defense counsel performed ineffectively is a mixed question of
law and fact; this Court reviews for clear error the trial court’s findings of fact and reviews de
novo questions of constitutional law.” People v Trakhtenberg, 493 Mich. 38, 47; 826 NW2d 136
(2012). A factual finding “is clearly erroneous if it leaves this Court with a definite and firm
conviction that a mistake has been made.” People v McElhaney, 215 Mich. App. 269, 273; 545
NW2d 18 (1996). But with regard to credibility determinations, this Court must “defer to the
trial court’s superior ability to view the evidence and the witnesses.” Id. at 278.
“Both the Michigan and the United States Constitutions require that a criminal defendant
enjoy the assistance of counsel for his or her defense.” Trakhtenberg, 493 Mich. at 51. “In order
to obtain a new trial, a defendant must show that (1) counsel’s performance fell below an
objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a
reasonable probability that the outcome would have been different.” Id. There is a “strong
presumption that counsel’s performance was born from a sound trial strategy,” id. at 52, and a
criminal defendant bears a heavy burden to overcome that presumption, People v Payne, 285
Mich. App. 181, 190; 774 NW2d 714 (2009).
A. PRELIMINARY EXAMINATION TESTIMONY
Defendant first contends that counsel was ineffective for advising defendant to testify at
the preliminary examination. We disagree.
At the preliminary examination, defendant, on questioning by his counsel, Ronald
McDuffie, testified that he attended the street races held in Detroit on June 12, 2011, the day of
the shooting. At trial, however, defendant testified that he was not present in that area on the day
of the shooting. He explained that he had gone to the street races in Detroit on a single occasion.
While he was unsure of the date he attended the races, defendant testified that it was not the day
of the shooting. The prosecutor used defendant’s preliminary examination testimony to impeach
his trial testimony. Thus, defendant’s preliminary examination testimony was harmful to
defendant at trial.
At the evidentiary hearing held regarding defendant’s ineffective assistance claims,
McDuffie explained why he called defendant to testify. Defendant had told McDuffie that he
was present at the races on the day the shooting occurred. Defendant explained, however, that he
was with a relative the entire time, and thus was not the shooter. McDuffie believed the
prosecutor’s identification evidence was weak. He had also spoken with the prosecutor
regarding the possibility of defendant taking a polygraph examination. McDuffie believed that
even if defendant was bound over at the preliminary examination, if he passed a polygraph
examination with a statement that was consistent with his preliminary examination testimony,
the charges could be dropped. For his part, Rajesh Prasad, who prosecuted the case, confirmed
that there were discussions regarding a polygraph examination. Prasad testified that he likely
would not have dropped the charges had defendant passed such an examination, but that the
ultimate decision whether to do so would have been “above [his] head.”
reply brief, defendant states that this issue is “withdrawn.” As defendant has abandoned the
claim, we do not address it.
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Defendant denied that any conversations took place concerning a polygraph examination.
He testified that before the preliminary examination, he spoke with McDuffie and described a
day he attended the races, but was not the same day as the shooting. He answered affirmatively
when McDuffie asked if he was present in the area on June 12, 2011, because he was unaware of
the date he was present in the area and assumed McDuffie was talking about the day he actually
was present, not the day of the shooting. Defendant testified that McDuffie decided alone that
defendant would testify.
When the trial court ruled on this issue, it found McDuffie credible.2 It also found that
the decision to have defendant testify was a strategic decision and that defendant had not shown
that strategy to be unsound. We agree with the trial court’s assessment. “The district court must
consider not only the weight and competency of the evidence, but also the credibility of the
witnesses, and it may consider evidence in defense.” People v Redden, 290 Mich. App. 65, 84;
799 NW2d 184 (2010). See also People v Yost, 468 Mich. 122, 127; 659 NW2d 604 (2003)
(“Our prior case law recognizes the propriety of an examining magistrate’s considering the
credibility of witnesses.”). Presenting defendant’s testimony at the preliminary examination may
have led the trial court to conclude that the prosecutor’s witnesses were not credible. The record
also supports McDuffie’s explanation that had defendant passed a polygraph, the charges might
have been dropped.3 McDuffie’s belief that consistent testimony at the preliminary examination
would have aided defendant in this regard is not patently unsound.
Nor does it appear that there was any reason for McDuffie to expect that defendant’s
preliminary examination testimony would later harm him at trial. Clearly, throughout the
preliminary examination, McDuffie was relying on defendant’s explanation that while he was
present in the area when the shooting occurred, he was not the shooter. Only later did defendant
change his story, claiming he was not present at all on June 12, 2011.4 But there was no reason
for McDuffie to expect defendant’s recollection to change so drastically between the preliminary
examination and trial. While defendant’s preliminary examination testimony proved damaging,
this Court will not second-guess McDuffie’s strategic choices with the benefit of hindsight. See
People v Dunigan, 299 Mich. App. 579, 589-590; 831 NW2d 243 (2013). Thus, although the
strategy of calling defendant to testify at the preliminary examination ultimately proved
unsuccessful, defendant fails to overcome the presumption that trial counsel’s performance was
2
Defendant asks this Court to conclude that McDuffie’s testimony was not credible. We decline
the invitation. “Special deference is given to a trial court’s findings when based on witness
credibility.” People v Sherman-Huffman, 241 Mich. App. 264, 267; 615 NW2d 776 (2000), aff’d
466 Mich. 39 (2002).
3
Although Prasad testified that a passed polygraph would likely not have changed his mind, he
also explained that the decision was not his to make. Thus, despite Prasad’s personal reluctance
to dismiss a matter based on a polygraph, the possibility remained open.
4
At the preliminary examination, before defendant testified, it had been made very clear that
June 12, 2011, was when the shooting occurred. Thus, defendant’s explanation that he believed
McDuffie was asking about a day other than when the shooting occurred is simply unbelievable.
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born of sound strategy. See People v Petri, 279 Mich. App. 407, 412; 760 NW2d 882 (2008) (“A
failed strategy does not constitute deficient performance.”).
Defendant also argues that Tuddles should have sought to exclude defendant’s
preliminary examination testimony on the basis that it was the result of McDuffie’s ineffective
assistance at the preliminary examination. Because defendant fails to demonstrate that
McDuffie’s strategy was unsound, any such motion would have failed. “Counsel is not
ineffective for failing to make a futile objection.” People v Thomas, 260 Mich. App. 450, 457;
678 NW2d 631 (2004).
B. TESTIMONY OF IRAN TARRANT
Defendant next contends that counsel should have contested the presentation of Iran
Tarrant’s preliminary examination testimony and requested a missing witness instruction on the
basis that the prosecutor had not demonstrated the exercise of due diligence to procure Tarrant’s
appearance at trial. We disagree.
Tarrant, who had identified defendant as the shooter at the preliminary examination, was
not produced at trial. The prosecutor moved to allow the presentation of Tarrant’s preliminary
examination testimony pursuant to MRE 804(b)(1) because Tarrant was unavailable, despite
diligent efforts to procure his testimony. After Sergeant Gary Diaz explained the efforts made to
procure Tarrant’s live testimony, Tuddles agreed that Tarrant’s preliminary examination
testimony was admissible. Tuddles requested a missing witness instruction, but the trial court
denied the request.
Defendant’s claim of ineffective assistance fails because the arguments he claims
Tuddles should have made were clearly meritless. MRE 804(b)(1) permits the use of
“[t]estimony given as a witness at another hearing of the same or a different proceeding, if the
party against whom the testimony is now offered . . . had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.” This exception to the general
prohibition against the admission of hearsay is only available, however, if the witness is
unavailable. MRE 804(b). A witness is deemed unavailable if the witness “is absent from the
hearing and the proponent of a statement has been unable to procure the declarant’s
attendance . . . by process or other reasonable means, and in a criminal case, due diligence is
shown.” MRE 804(a)(5).
Defendant argues that the prosecutor did not demonstrate due diligence and that Tuddles
was ineffective for failing to contest this requirement. As our Supreme Court has explained,
[t]he test for whether a witness is “unavailable” as envisioned by MRE 804(a)(5)
is that the prosecution must have made a diligent good-faith effort in its attempt to
locate a witness for trial. The test is one of reasonableness and depends on the
facts and circumstances of each case, i.e., whether diligent good-faith efforts were
made to procure the testimony, not whether more stringent efforts would have
produced it. [People v Bean, 457 Mich. 677, 684; 580 NW2d 390 (1998).]
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Defendant claims that the efforts made in this case consisted of “making a few attempts
to serve process and then stopping when the mother of the witness says [Tarrant] does not want
to come to court.” The record does not support defendant’s claim. As Diaz explained, Tarrant
was initially cooperative. Diaz then attempted to visit Tarrant at his home before the start of
trial, only to find that the home had burned down. Officers were eventually able to locate
Tarrant’s mother, who was belligerent, uncooperative, and indicated that Tarrant would not
appear to testify. The prosecutor obtained a witness detainer. With the detainer in hand, the
Fugitive Apprehension Team began searching for Tarrant. Unfortunately, despite pursuing a
number of potential leads regarding Tarrant’s location,5 the team was unable to find him. Under
the circumstances, the efforts made to locate Tarrant constituted diligent, good-faith efforts.
Accordingly, an objection to the admission of his preliminary examination testimony would have
been futile, as Tuddles aptly recognized. Counsel is not ineffective for failing to raise a futile
objection. See Thomas, 260 Mich. App. at 457.
Defendant similarly contends that counsel should have sought a missing witness
instruction. It is difficult to fault counsel on this point because Tuddles did pursue such an
instruction through the end of trial. Further, the trial court correctly declined to give the
instruction because it is warranted only if the prosecutor did not exercise due diligence to
procure a witness’s testimony, and we agree that the prosecutor established that Tarrant could
not be produced despite the exercise of due diligence. See People v Eccles, 260 Mich. App. 379,
388; 677 NW2d 76 (2004).
C. FAILURE TO INTERVIEW WITNESSES
Defendant next claims that Tuddles failed to interview two witnesses before calling them
to testify, resulting in the loss of valuable information that could have been presented to the jury.
We disagree.
The first of the two witnesses at issue is Michael Smith, defendant’s uncle. Michael
testified that he attended the street races on June 11, 2011, and that he was accompanied by
defendant. He was sure this was the correct date because his wedding anniversary is June 10,
and he remembered that his wife allowed him to go to the races the day after their anniversary.
The second witness, defendant’s cousin, Kourtney Manley, testified that he had gone to the races
with defendant in the past, but that on June 11 2011, and June 12, 2011, he was in Dallas. He
testified that he attended a street race in Detroit with defendant and other family members on or
about June 20, 2011.
5
The team checked Tarrant’s bridge card usage, only to find that it had not been used for several
months. They checked with the medical examiner’s office. They tried to find a last known
address from the post office. They checked police reports. They also tried to find utility services
in Tarrant’s name, but found none. Diaz attempted to call Tarrant on his personal cell phone, but
the number was no longer in use.
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At the evidentiary hearing, Michael testified that his trial testimony was incorrect. He did
not attend the races with defendant on June 11, 2011, but rather, they attended the races on or
about June 25, 2011. He also explained that he spoke briefly with Tuddles before testifying, but
that their conversation was not about his impending testimony. Manley testified that indeed, he
was in Dallas on the day of the shooting and that he had spoken to Tuddles regarding this fact
immediately before testifying at trial. Tuddles explained that he met with every witness before
calling them to testify. The trial court found that Tuddles had met with both Michael and
Manley “in the hallway” and that he had also spoken to defendant himself regarding the
testimony of these witnesses. The trial court concluded that although Tuddles might have done
more, additional investigation into these witnesses would not have changed their testimony or the
outcome of trial.
Trial counsel has a duty to make a reasonable investigation or a reasonable decision that
makes a particular investigation unnecessary. Trakhtenberg, 493 Mich. at 52. But as the trial
court concluded, Tuddles did not fail to investigate these witnesses. And in any event, “the
failure to interview witnesses does not itself establish inadequate preparation.” People v
Caballero, 184 Mich. App. 636, 642; 459 NW2d 80 (1990). Rather, “[i]t must be shown that the
failure resulted in counsel’s ignorance of valuable evidence which would have substantially
benefited the accused.” Id. Michael’s allegedly inaccurate testimony was not the result of a lack
of preparation by Tuddles. Rather, Michael explained that his trial testimony was the result of a
lack of sleep. Manley’s trial testimony was essentially identical to what he stated at the
evidentiary hearing. Nothing in the record indicates that any lack of preparation by Tuddles
resulted in him being ignorant of important evidence. Accordingly, defendant has not
established entitlement to relief.
D. FAILURE TO IMPEACH HANSON
Defendant next contends that Tuddles was ineffective for failing to impeach Hanson with
his prior statement to the police. We disagree.
Defendant contends, and the prosecution agrees, that Tuddles should have made
additional attempts to impeach Hanson with his statement to the police. But we need not decide
that question, because this Court has already determined that it is “not reasonably likely that
Hanson’s testimony could have affected the jury’s judgment.” Taylor, unpub op at 7. To prevail
on his ineffective assistance claim, defendant bears the burden of demonstrating that it is
reasonably likely that Tuddles’s failure to impeach Hanson’s trial testimony affected the
outcome of trial. But if it is not reasonably likely that Hanson’s trial testimony affected the
jury’s verdict, it cannot be said that impeaching that testimony would have any likelihood of
leading to a different result.
The prosecutor suggests that this Court’s prior analysis was merely dictum, and thus, not
binding on this Court. But “an issue that is intentionally addressed and decided is not dictum if
the issue is germane to the controversy in the case, even if the issue was not necessarily decisive
of the controversy in the case.” Griswold Props, LLC v Lexington Ins Co, 276 Mich. App. 551,
563; 741 NW2d 549 (2007). See also Pew v Mich State Univ, 307 Mich. App. 328, 334; 859
NW2d 246 (2014). That is precisely the situation presented here. While not dispositive, the
question whether Hanson’s testimony was material was germane to the controversy previously
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before this Court, and clearly, this Court intentionally addressed and decided the question.
Accordingly, this Court’s prior determination of the question is not dictum.
“The law of the case doctrine holds that a ruling by an appellate court on a particular
issue binds the appellate court and all lower tribunals with respect to that issue.” Ashker ex rel
Estate of Ashker v Ford Motor Co, 245 Mich. App. 9, 13; 627 NW2d 1 (2001). While there are
certain exceptions to this rule, none apply here.6 Accordingly, we are bound by this Court’s
prior determination regarding the effect of Hanson’s testimony, precluding relief.7
E. FAILURE TO CALL WITNESSES
Defendant contends that trial counsel was ineffective for failing to call potential alibi
witnesses. We disagree.
At trial, defendant testified that he was not at the races on the night of the shooting, and
instead, was riding his motorcycle in Detroit along with either Deputy Jeffrey Mathes or
Anthony Simpson. At the evidentiary hearing, defendant explained that he, Simpson, and
Tuddles spoke on the telephone, and after the conversation, defendant realized he must have
been riding with Mathes. Tuddles explained at the hearing that he contacted Mathes, who denied
having been with defendant on June 11, 2011. Thus, Tuddles did not call Mathes to testify.
Mathes, however, testified that he was not contacted by Tuddles. Mathes explained that he had,
in fact, gone riding with defendant on one occasion. However, Mathes could not remember
when he did. He also testified that when he went riding with defendant, it was early evening,
and they “started maybe in the afternoon and rode toward the evening.”
Clearly, the failure to call Simpson was of no moment, as defendant eventually realized
that Simpson was not the man he claimed to have been riding with on the day of the shooting.
Given that Mathes could not recall what day he rode with defendant, and that he did not testify to
riding with defendant during the same time of day when the shooting occurred, his testimony
would not have made a difference in the outcome of the trial. “ ‘[T]he failure to call witnesses
only constitutes ineffective assistance of counsel if it deprives the defendant of a substantial
defense.’ ” People v Russell, 297 Mich. App. 707, 716; 825 NW2d 623 (2012) (citation omitted)
“ ‘A substantial defense is one that might have made a difference in the outcome of the trial.’ ”
6
The law of the case doctrine “will not be applied if the facts do not remain materially or
substantially the same or if there has been a change in the law.” Grace v Grace, 253 Mich. App.
357, 363; 655 NW2d 595 (2002). But here, there have been no changes to the operative facts,
and no changes in the law, since this Court’s prior opinion. The doctrine is also inapplicable if
the prior decision amounts to mere obiter dictum. See Johnson v White, 430 Mich. 47, 54 n 2;
420 NW2d 87 (1988). But as explained, this Court’s prior decision on the issue was not dictum.
7
Even if we were not bound by this Court’s prior decision, we agree with it. Because four other
witnesses identified defendant as the shooter, Hanson’s testimony was cumulative and not likely
to affect the outcome of the trial.
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People v Chapo, 283 Mich. App. 360, 371; 770 NW2d 68 (2009) (citation omitted). Defendant’s
contention is, therefore, without merit. See id.8
F. FACEBOOK POST
Defendant next contends that Tuddles was ineffective for failing to seek the admission of
a Facebook post, written by defendant. We disagree.
The post, dated June 11, 2011, stated that defendant was going to Detroit to “Summer
Jams,” and then to the “island.” Defendant claims that this post was admissible to show how he
“determined who he had been riding motorcycles with and to provide the context within which
the jury could understand how he now says it was Mathes.” Limited to the purpose for which
defendant asserts he would have sought the post’s admission, the post had virtually no probative
value. The post says nothing about Mathes or about riding motorcycles. Further, defendant was
permitted to testify at trial that his memory (specifically, that he was not at the races on June 11,
2011, or June 12, 2011) was jogged by a conversation he had with his sister, Lakita Smith. At
the evidentiary hearing, defendant explained that in the conversation he had with Lakita, she
brought up the Facebook post, and from that post, the two concluded that defendant was not at
the races on June 11, 2011, or June 12, 2011. Lakita later testified that she
happened to go on [defendant’s] Facebook and went to the date back to June and
his post was June 11th, and it said something about Summer Jams, going to the
city. When I just started thinking back, like, I remember mama saying she saw
him getting on the highway on his bike – she saw him getting on the highway on
his bike around midnight . . . .
Thus, the Facebook post itself would have added very little, as it was cumulative of testimony
already before the jury. Accordingly, admission of the post for the limited purpose cited by
defendant was not reasonably likely to change the outcome of trial.9
8
Defendant’s appellate brief refers to another witness who he claims did not testify, Anthony
Smith, but defendant fails to explain why Smith should have been called. To the extent
defendant intends to argue that counsel was ineffective for failing to call Smith, by failing to
address the merits of the issue, it has been abandoned. See Payne, 285 Mich. App. at 188.
Further, Tuddles did call Smith to testify at trial.
9
Clearly, the relevant purpose of admitting the statement would have been to prove defendant’s
whereabouts. This use of the statement, however, would have violated the prohibition against
hearsay, as the statement would have been admitted to prove the truth of the matter asserted in
the statement. See People v Musser, 494 Mich. 337, 350; 835 NW2d 319 (2013). Defendant
further contends that rules of evidence cannot deprive a defendant of his right to present a
defense. Defendant was not deprived of his right to present a defense, because he was able to
present his alibi defense through his own testimony. Further, the rules of evidence do not
infringe on the right to present a defense unless shown to be arbitrary or disproportionate to the
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G. SEQUESTRATION ORDER
Finally, defendant argues that trial counsel was ineffective for his handling of the fact
that after Hanson testified, several prosecution witnesses spoke with him before testifying
themselves, in violation of a court order. We disagree.
After Hanson testified, he spoke with several other witnesses outside of court who had
yet to testify themselves. Tuddles cross-examined each of these witnesses regarding their
conversations. Each explained that they did not discuss the shooting, but rather, the manner of
Tuddles’s questioning. In his closing argument, Tuddles asked the jurors to question the
credibility of these witnesses, arguing that perhaps they were influenced by Hanson or each
other.
Defendant now contends that Tuddles should have asked the trial court to strike the
testimony of these witnesses or declare a mistrial. Generally, there are three remedies available
when a witness violates a sequestration order: holding the offending witness in contempt,
allowing cross-examination regarding the violation, or precluding the witness from testifying.
People v Meconi, 277 Mich. App. 651, 654; 746 NW2d 881 (2008). But precluding witnesses
from testifying “is an extreme remedy that should be sparingly used.” Id. Simply because the
witnesses spoke with each other outside of court, and not regarding the substance of their
testimony, would not warrant such an extreme sanction. Cf. id. at 654-655 (where a witness had
been present in the courtroom in violation of a sequestration order, but heard only “short opening
statements, not testimony,” it was an abuse of discretion to prohibit the witness from testifying).
Rather, under the circumstances, Tuddles pursued a reasonable course of action—cross-
examining the witnesses regarding their conversations. Tuddles then used the testimony he
elicited to argue that the witnesses were not credible. This was a reasonable strategic choice by
counsel. Counsel was not ineffective for failing to request a more severe sanction, which almost
certainly would have been denied.
H. CUMULATIVE ERROR
Defendant argues that even if the alleged errors do not present a reasonable likelihood of
a different result when viewed individually, taken in the aggregate, they establish the requisite
prejudice. We disagree. “It is true that the cumulative effect of several errors can constitute
sufficient prejudice to warrant reversal where the prejudice of any one error would not.” People
v LeBlanc, 465 Mich. 575, 591; 640 NW2d 246 (2002). But this is not such a case. The question
at trial was whether defendant was the shooter. In this regard, defendant was convicted on the
strength of testimony from several eyewitnesses. Although defendant attempted to claim he was
not present when the crime occurred, testimony from one of his own witnesses, Michael Smith,
placed him at the scene. Defendant also placed himself at the scene of the crime at the
preliminary examination, only to later change his story and contend that he was not present at all.
Nor was he able, either at trial or in post-trial proceedings, to present a witness who could truly
verify his alibi. Whether considered individually or in the aggregate, the few instances where
purpose of the rule. See People v King, 297 Mich. App. 465, 474; 824 NW2d 258 (2012).
Defendant does not even attempt to make such a showing with regard to the hearsay rules.
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Tuddles might have done more did not prejudice defendant. Accordingly, a new trial is not
warranted.
II. PRESENTATION OF PERJURED TESTIMONY
Defendant contends that this Court erred in its prior decision when it reversed the trial
court’s order granting him a new trial on the basis that the prosecutor knowingly presented false
testimony. We are precluded from reconsidering this issue. “The law of the case doctrine holds
that a ruling by an appellate court on a particular issue binds the appellate court and all lower
tribunals with respect to that issue.” Ashker, 245 Mich. App. at 13. Finding no applicable
exceptions to the doctrine, we reject defendant’s attempt to relitigate this issue.
Affirmed.
/s/ Henry William Saad
/s/ Kathleen Jansen
/s/ Michael J. Kelly
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