People of Michigan v. Billy Melvin Howard ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 11, 2017
Plaintiff-Appellee,
v No. 320695
Wayne Circuit Court
BILLY MELVIN HOWARD, LC No. 13-009560-01-FC
Defendant-Appellant.
Before: STEPHENS, P.J., and SERVITTO and SHAPIRO, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of three counts of assault with
intent to commit murder, MCL 750.83; felonious assault, MCL 750.82; intentional discharge of a
firearm from a motor vehicle, MCL 750.234a; intentional discharge of a firearm at a dwelling or
occupied structure, MCL 750.234b; possession of a firearm by a person convicted of a felony
(felon-in-possession), MCL 750.224f; and possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b. Defendant was sentenced to 16 to 30 years’
imprisonment for each assault with intent to commit murder conviction; one to four years’
imprisonment each for the felonious assault conviction, for the intentional discharge of a firearm
from a motor vehicle conviction, and for the intentional discharge of a firearm at a dwelling or
occupied structure conviction; one to five years’ imprisonment for the felon-in-possession
conviction, and two years’ imprisonment for the felony-firearm conviction. We affirm.
We note at the outset that defendant has filed multiple appellate briefs in this case. He
filed an original appellate brief and a Standard 4 brief. After obtaining a new appellate attorney,
defendant was granted permission to file a supplemental appellate brief, which we will refer to as
his supplemental appellate brief filed before remand. After a remand for a Ginther1 hearing,
defendant filed a supplemental appellate brief after remand.2 We will first address the issues
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
2
See People v Howard, unpublished order of the Court of Appeals, entered May 28, 2015
(Docket No. 320695) (granting, inter alia, defendant’s motion to file a supplemental brief before
remand and his motion to remand the case for a Ginther hearing, and allowing defendant to file
another supplemental appellate brief after remand).
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raised in defendant’s original appellate brief and Standard 4 brief before turning to the issues
raised in defendant’s supplemental appellate briefs filed before and after remand.
I. DEFENDANT’S ORIGINAL APPELLATE BRIEF AND STANDARD 4 BRIEF
A. INEFFECTIVE ASSISTANCE OF COUNSEL
This case arises from an incident in which defendant fired gunshots out of the passenger
side of a car that was driven by his brother, Germaine Howard (Germaine). Defendant first
argues in his original appellate brief that defense counsel rendered ineffective assistance when he
failed to call Germaine as a witness at trial. Defendant argues in his Standard 4 brief on appeal
that defense counsel rendered ineffective assistance when he failed to move for a directed verdict
with regard to the assault with intent to commit murder charges. We disagree.
“[A] defendant must move in the trial court for a new trial or an evidentiary hearing to
preserve the defendant’s claim that his or her counsel was ineffective.” People v Heft, 299 Mich
App 69, 80; 829 NW2d 266 (2012). Defendant did not move for a new trial or an evidentiary
hearing on this issue in the trial court. Therefore the issue in unpreserved. See id.3
This Court reviews an unpreserved issue of ineffective assistance of counsel for mistakes
apparent on the record. Heft, 299 Mich. App. at 80. An ineffective assistance of counsel claim
involves questions of fact and questions of constitutional law. Id. This Court reviews the trial
court’s findings of fact for clear error and reviews de novo the legal issue. Id.
“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.” People v
Trakhtenberg, 493 Mich. 38, 51; 826 NW2d 136 (2012). There is a strong presumption that
defense counsel’s conduct constituted sound trial strategy. Id. at 52. The failure to call a witness
at trial is presumed to be a matter of trial strategy. People v Seals, 285 Mich. App. 1, 21; 776
NW2d 314 (2009). Failure to call a witness constitutes ineffective assistance of counsel only if
the failure to call the witness “ ‘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.’ ” People v Chapo,
283 Mich. App. 360, 371; 770 NW2d 68 (2009) (citation omitted). “Similarly, ‘[t]he failure to
make an adequate investigation is ineffective assistance of counsel if it undermines confidence in
the trial’s outcome.’ ” Russell, 297 Mich. App. at 716 (citation omitted; alteration in original).
“Failing to advance a meritless argument or raise a futile objection does not constitute ineffective
assistance of counsel.” People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120 (2010).
Defense counsel did not render ineffective assistance when he failed to call Germaine as
a witness at trial.
3
As discussed later, this issue is related to other issues that were the subject of the Ginther
hearing on remand. We will consider the full record that now exists in addressing this issue.
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A convicted person who attacks the adequacy of the representation he received at
his trial must prove his claim. To the extent his claim depends on facts not of
record, it is incumbent on him to make a testimonial record at the trial court level
in connection with a motion for a new trial which evidentially supports his claim
and which excludes hypotheses consistent with the view that his trial lawyer
represented him adequately. [People v Hoag, 460 Mich. 1, 6; 594 NW2d 57
(1999) (citation and quotation marks omitted.]
Defendant attaches to his original appellate brief Germaine’s affidavit,4 in which Germaine states
that he (Germaine) is innocent. Germaine states that the person who fired gunshots out of his car
acted in self-defense, but Germaine did not know that the person had a gun or would shoot the
gun. Germaine states that he pleaded guilty because his attorney informed him that if he
accepted a guilty plea, he would be able to testify at defendant’s trial that defendant was not at
the scene of the incident and did not shoot anyone. According to Germaine, he was not given the
opportunity to testify at defendant’s trial. Germaine testified substantially to the same effect at
the Ginther hearing on remand.
Defendant fails to overcome the strong presumption that defense counsel’s failure to call
Germaine as a witness constituted sound trial strategy. Germaine states in his affidavit that he
would have testified that defendant was not at the scene of the incident and did not shoot anyone.
However, Germaine admits in his affidavit that he, personally, was at the scene of the incident
during the incident, even though defendant was not. Thus, defense counsel may have decided
that Germaine’s testimony would have tied defendant to the scene of the incident because he is
defendant’s brother and that a brother may lie for his brother to protect him. Germaine further
states that he was “jumped” in a convenience store two days before the incident and that the
people who attacked him had guns and were looking for him. This connects defendant with the
incident since Jermaine King5 testified that he was in a fight with the driver of the car, a man he
knew as “Maine,” at a party store three days before the incident. In addition, Germaine’s
testimony that he was in a fight a few days before the incident bolsters Jermaine King’s
credibility since Germaine’s version of events is consistent with Jermaine King’s version of
events. Furthermore, Germaine does not identify the actual shooter in his affidavit, and his
potential failure to identify the real shooter at trial may have led the jury to believe that
defendant was the shooter. Thus, defendant fails to overcome the strong presumption that
defense counsel’s conduct constituted sound trial strategy since defense counsel may have
decided not to call Germaine as a witness because his testimony may have linked defendant to
the incident. See Russell, 297 Mich. App. at 716; Seals, 285 Mich. App. at 21. And, as discussed
later, defense counsel testified at the Ginther hearing that the reason he did not call Germaine to
testify at trial was because Germaine lacked credibility given his refusal to identify the shooter.
4
This Court granted defendant’s motion to enlarge the record to include Germaine’s affidavit.
See People v Howard, unpublished order of the Court of Appeals, entered May 28, 2015 (Docket
No. 320695).
5
We will refer to Jermaine King by both his first and last name to avoid confusion with
Germaine Howard and alibi witness Earl King.
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Furthermore, defendant fails to show a reasonable probability that, but for defense
counsel’s conduct in failing to call Germaine as a witness, the result of the trial would have been
different because there is additional evidence linking defendant to the crime. While it is possible
that the jury would have believed Germaine’s testimony that defendant was not present at the
scene of the incident, Marquisha Jackson (Marquisha) and Jermaine King both identified
defendant as the man who was sitting in the passenger seat of the car. Thus, defendant was
clearly identified at trial as the shooter. Additionally, defendant called two other alibi witnesses
at trial. The jury found defendant guilty of the crimes in spite of his alibi defense. Defendant
fails to show how the addition of Germaine as an alibi witness would have resulted in a different
outcome in this case, especially considering that Germaine admits to being at the scene of the
incident and to getting into a fight with Jermaine King before the incident. This testimony links
defendant to the incident and bolsters the credibility of Jermaine King and Marquisha.
Therefore, there is not a reasonable probability that, but for defense counsel’s failure to call
Germaine as a witness at trial, the result of the trial would have been different. See
Trakhtenberg, 493 Mich. at 51.
In addition, defense counsel was not ineffective for failing to move for a directed verdict
with regard to all of the assault with intent to commit murder charges. Defense counsel moved
for a directed verdict on the charges of assault with intent to commit murder as to Marquisha,
assault with intent to do great bodily harm as to Marquisha, and felonious assault as to
Marquisha. The trial court granted the motion for a directed verdict with regard to the assault
with intent to commit murder and the assault with intent to do great bodily harm charges.
However, defense counsel did not move for a directed verdict with regard to the other charges.
As discussed in further detail below, there was sufficient evidence presented at trial for the jury
to convict defendant of assault with intent to commit murder with regard to Jermaine King,
Tamika Williams, and Aubrey Lollie. Therefore, defense counsel did not render ineffective
assistance when he failed to move for a directed verdict with regard to all of the assault with
intent to commit murder charges. See Ericksen, 288 Mich. App. at 201. Defendant points out that
defense counsel filed a motion to quash the information because there was insufficient evidence
presented at the preliminary examination to bind over defendant on the charges. However, a
defendant moves for a directed verdict in the trial court based on the testimony presented at trial.
See MCR 6.419(A) (outlining the process for bringing a motion for a directed verdict of acquittal
and noting that the defense must bring the motion after the prosecution has rested its case-in-
chief, or after the close of all of the evidence in the case); People v Hartuniewicz, 294 Mich. App.
237, 242; 816 NW2d 442 (2011) (explaining the standard of review for a denial of a motion for a
directed verdict). Therefore, defendant’s argument that defense counsel should have moved for a
directed verdict based on the testimony presented at the preliminary examination fails.
B. SUFFICIENCY OF THE EVIDENCE
Defendant next argues in his Standard 4 brief on appeal that there was insufficient
evidence to support his convictions. We disagree.
This Court reviews de novo a challenge to the sufficiency of the evidence. People v
Stevens, 306 Mich. App. 620, 628; 858 NW2d 98 (2014). This Court reviews the evidence “in the
light most favorable to the prosecution, to determine if any rational trier of fact could have found
that the essential elements of the crime were proven beyond a reasonable doubt.” Id. In
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addition, “[t]his Court will not interfere with the trier of fact’s determinations regarding the
weight of the evidence or the credibility of witnesses.” Id.
Defendant’s arguments concerning the sufficiency of the evidence are premised upon
identification. Defendant first argues that the fact that he was at the scene of the crime was
insufficient to establish his guilt. “Mere presence, even with knowledge that an offense is about
to be committed or is being committed, is insufficient to establish that a defendant aided or
assisted in the commission of the crime.” People v Norris, 236 Mich. App. 411, 419-420; 600
NW2d 658 (1999).
Jermaine King and Marquisha testified that they saw defendant sitting in the passenger
seat of the Buick Roadmaster when the car drove onto Durand, the street where the incident
occurred. Marquisha testified that Germaine drove by in the car once by himself, then a few
minutes later, drove down Durand with defendant in the passenger seat. The car stopped a few
feet away from Marquisha. Defendant was approximately 6 feet away from Marquisha.
Jermaine King heard defendant yell, “ ‘What’s up?’ ” Defendant was approximately 12 to 15
feet away from Jermaine King. Marquisha stared at defendant for a couple of seconds. After a
short pause, defendant pulled out a black gun from a black holster with white writing on it.
Defendant pointed the gun toward the crowd of people in front of Marquisha, which included
Jermaine King. According to Jermaine King, defendant pointed the gun at him. Defendant fired
one or two gunshots before the car drove away. This evidence established that defendant was the
shooter during the incident, rather than merely present at the scene of the incident. See Norris,
236 Mich. App. at 419-420.
Defendant also argues that he was implicated in the crime only because of Marquisha’s
initial description of the shooter. Defendant argues that Marquisha altered her original
description of the shooter once she saw a photograph of defendant. The prosecution must prove
the identity of the defendant as the perpetrator of an offense. See People v Oliphant, 399 Mich.
472, 489; 250 NW2d 443 (1976). “[P]ositive identification by witnesses may be sufficient to
support a conviction of a crime.” People v Davis, 241 Mich. App. 697, 700; 617 NW2d 381
(2000). The issue of the credibility of identification of a defendant is a question for the trier of
fact. Id.
Both Jermaine King and Marquisha identified defendant as the man who was in the
passenger seat of the car. The incident occurred in broad daylight. Marquisha had seen
defendant with Germaine at a party store in the neighborhood several times before the incident.
Marquisha also identified defendant in a photographic lineup sometime after the incident. Thus,
Marquisha’s initial statement to the police was not the only identification of defendant as the
shooter. Marquisha told the police that the shooter was a black male who was bald, shorter than
Germaine, and was wearing a bright-colored shirt. Marquisha explained at trial that “bald” to
her means that the person has a short haircut. Detroit Police Officer Andrew Dattolo found a
photograph of defendant on Facebook, which was uploaded to Facebook on the day of the
incident. Defendant posted a statement on Facebook in connection with the photograph, in
which he said that “he had to get rid of his ‘fro.” Several people wrote comments corresponding
with the photograph, which described the fact that defendant had gotten “a fresh haircut.”
Contrary to defendant’s assertion, there is no indication that Marquisha’s description changed
when she saw the Facebook photograph. Instead, Marquisha clarified at trial that she refers to
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someone with a close haircut as being “bald.” To the extent that defendant argues that
Marquisha’s identification of him as the shooter was not credible, the credibility issue was a
question for the trier of fact. See Davis, 241 Mich. App. at 700.
C. TRIAL JUDGE BIAS
Defendant next argues in his Standard 4 brief that he is entitled to resentencing by a
different trial judge because the trial judge improperly injected personal bias into the sentencing
proceeding. We disagree.
A defendant must raise the issue of judicial bias in the trial court in order to preserve it
for appellate review. See People v Jackson, 292 Mich. App. 583, 597; 808 NW2d 541 (2011).
Defendant did not raise the issue in the trial court. Therefore, it is unpreserved. See id.
This Court reviews an unpreserved claim of judicial bias for plain error affecting the
defendant’s substantial rights. See Jackson, 292 Mich. App. at 597. “To avoid forfeiture under
the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error
was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” People v
Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999). With regard to the last requirement, a
defendant must show prejudice, meaning that the error affected the outcome in the trial court. Id.
In addition, “[r]eversal is warranted only when the plain, forfeited error resulted in the conviction
of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings independent of the defendant’s innocence.” Id. (citation
and quotation marks omitted; second alteration in original).
MCR 2.003(C)(1)(a) provides that disqualification of a trial judge is warranted if “[t]he
judge is biased or prejudiced for or against a party or attorney.” In order to show that a judge is
personally biased or prejudiced against a defendant, the defendant must show actual bias. Cain v
Dep’t of Corrections, 451 Mich. 470, 495; 548 NW2d 210 (1996). There is “a heavy
presumption of judicial impartiality.” Id. at 497. The phrase “personal bias” means that “the
challenged bias must have its origin in events or sources of information gleaned outside the
judicial proceeding.” Id. at 495-496. An unfavorable ruling of a trial judge is not a basis for
judicial disqualification “ ‘unless there is a deep-seated favoritism or antagonism such that the
exercise of fair judgment is impossible.’ ” Jackson, 292 Mich. App. at 598 (citation omitted). In
addition, a trial judge’s disapproving or hostile remarks do not ordinarily give rise to a finding of
bias. Id. In People v Antoine, 194 Mich. App. 189, 191; 486 NW2d 92 (1992), this Court
clarified:
Sentencing is the time for comments against felonious, antisocial behavior
recounted and unraveled before the eyes of the sentencer. At that critical stage of
the proceeding when penalty is levied, the law vindicated, and the grievance of
society and the victim redressed, the language of punishment need not be tepid.
At sentencing, the trial judge made several remarks stating that the offense was senseless
and that defendant would be known for making one mistake, warning defendant not to take
anything for granted, noting that defense counsel did what he could during trial, and alluding to
the fact that defendant should have pleaded guilty like his brother did. There is no indication that
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the trial judge had a personal bias or prejudice against defendant; defendant fails to show that the
trial judge was biased against him because of events or sources of information from outside of
the judicial proceeding. See Cain, 451 Mich. at 495-496. Instead, the remarks at issue only
concerned the trial court proceedings as well as the trial judge’s personal experiences. See id.
The trial judge did not need to use tepid language in rendering sentence, and her disapproving
remarks did not give rise to bias. See Jackson, 292 Mich. App. at 598; Antoine, 194 Mich. App. at
191. Because defendant fails to show that the trial judge was biased at sentencing, defendant is
not entitled to resentencing.
II. DEFENDANT’S SUPPLEMENTAL APPELLATE BRIEFS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
In his supplemental appellate briefs, defendant presents numerous additional claims that
he was denied the effective assistance of counsel. First, defendant contends in both of his
supplemental appellate briefs that his trial counsel, Patrick Nyenhuis, had a conflict of interest
that adversely affected his performance. We disagree.
“[I]n order to demonstrate that a conflict of interest has violated his Sixth Amendment
rights, a defendant ‘must establish that an actual conflict of interest adversely affected his
lawyer’s performance.’ ” People v Smith, 456 Mich. 543, 556; 581 NW2d 654 (1998), quoting
Cuyler v Sullivan, 446 U.S. 335, 350; 100 S. Ct. 1708; 64 L. Ed. 2d 333 (1980).
In People v Pickens, 446 Mich. 298; 521 NW2d 797 (1994), this Court
adopted the ineffective assistance of counsel standard articulated by Strickland v
Washington, 466 U.S. 668; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). To prove a
claim of ineffective assistance of counsel under Pickens and Strickland, a
defendant must show that counsel’s performance fell below an objective standard
of reasonableness and that the deficient performance prejudiced the defense so as
to deny defendant a fair trial. Strickland, 466 U.S. at 688-689. In dicta however,
Strickland cited Cuyler’s rule for cases involving ineffective assistance of counsel
claims premised on an actual conflict of interest. Id. at 692. Cuyler calls for a
heightened standard in conflict of interest claims. In circumstances involving a
conflict of interest, Cuyler stated that “counsel breaches the duty of loyalty,
perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure
the precise effect on the defense of representation corrupted by conflicting
interests.” Strickland, 466 U.S. at 692. This heightened standard is not a rule of
prejudice per se; rather, “[p]rejudice is presumed only if the defendant
demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an
actual conflict of interest adversely affected his lawyer’s performance.’ ” Id.,
quoting Cuyler, 446 US at 348-350. [Smith, 456 Mich. at 556-557.]
Our Supreme Court in Smith adopted “the reasoned approach of Cuyler[.]” Smith, 456 Mich. at
558. The breach of an attorney’s ethical duty does not necessarily establish a violation of the
defendant’s Sixth Amendment right to the assistance of counsel. Mickens v Taylor, 535 U.S. 162,
176; 122 S. Ct. 1237; 152 L. Ed. 2d 291 (2002), citing Nix v Whiteside, 475 U.S. 157, 165; 106 S. Ct.
988; 89 L. Ed. 2d 123 (1986). Further, the adverse effect on defense counsel’s representation
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must be actual rather than speculative. See People v Fowlkes, 130 Mich. App. 828, 836; 345
NW2d 629 (1983).
Defendant contends that he was denied his right to the effective assistance of counsel free
from a conflict of interest because his trial attorney, Nyenhuis, also represented defendant’s
brother and codefendant, Germaine, at certain points of this case. He also argues that even after
Germaine’s representation was assumed by another attorney, i.e., Otis Culpepper, defendant and
Germaine continued to be represented by the same law offices because Nyenhuis and Culpepper
were associates from the same office. Defendant’s argument lacks merit.
At the Ginther hearing, there was testimony establishing that Nyenhuis represented
Germaine in an unrelated misdemeanor traffic ticket case in Oakland County; according to
Germaine, Nyenhuis also represented Germaine in an unrelated domestic violence case in
Macomb County, although Nyenhuis denied that he represented Germaine in that case.
Nyenhuis was still representing Germaine in the Oakland County traffic ticket case while
representing defendant in the present case. In addition, Nyenhuis represented Germaine as well
as defendant in the initial stages of this case. Nyenhuis did not feel that he had divided loyalties
during his dual representation of defendant and Germaine. Nyenhuis did not think that his brief
representation of Germaine interfered with his representation of defendant.
The timeline of Nyenhuis’s representation of defendant and Germaine in this case was as
follows. Nyenhuis first appeared for defendant in late September of 2013. Germaine was
arrested in this case on October 9, 2013. Nyenhuis represented Germaine at the arraignment on
the warrant, which was held on October 9, 2013, and at a hearing on October 29, 2013, at which
Germaine waived his right to a preliminary examination. On November 19, 2013, Culpepper
assumed Germaine’s representation. At a November 21, 2013 bond hearing, attorney Robert
Kinney stood in for Culpepper on behalf of Germaine. At a January 13, 2014 final conference,
Culpepper arrived late, and Nyenhuis stood in for Culpepper and briefly represented both
defendant and Germaine until Culpepper arrived in the courtroom. Kinney and Nyenhuis each
rented office space from Culpepper, and Kinney as well as Nyenhuis sometimes stood in for
Culpepper in court. Nyenhuis did not discuss trial strategy with Culpepper, and they did not
share fees. Nyenhuis has always been a sole practitioner. At the January 13, 2014 final
conference, Nyenhuis, on behalf of defendant and Germaine, stated that there was no objection
to the prosecutor’s request to consolidate the cases against defendant and Germaine. Culpepper
appeared in the courtroom a short time later. On January 15, 2014, Culpepper represented
Germaine at a plea hearing at which Germaine pleaded guilty to assault with intent to commit
murder and felony-firearm. Culpepper also represented Germaine at a February 10, 2014
sentencing hearing. Defendant, represented by Nyenhuis, was tried by jury from January 23,
2014, to January 30, 2014.
The fact that Nyenhuis represented both defendant and Germaine in the early stages of
this case does not by itself establish that defendant was deprived of the effective assistance of
counsel. “[M]ultiple representation does not violate the Sixth Amendment unless it gives rise to
a conflict of interest.” Cuyler, 446 U.S. at 348. “[U]ntil a defendant shows that his counsel
actively represented conflicting interests, he has not established the constitutional predicate for
his claim of ineffective assistance.” Id. at 350. The mere possibility of a conflict fails to
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establish a Sixth Amendment violation; rather, a defendant must show “that an actual conflict of
interest adversely affected his lawyer’s performance.” Id.; see also Smith, 456 Mich. at 557.
Defendant has failed to establish that Nyenhuis actively represented conflicting interests
by virtue of his brief dual representation of defendant and Germaine. Nyenhuis represented
Germaine only in the early stages of this case, including at the arraignment on the warrant and at
the hearing at which the preliminary examination was waived. Culpepper assumed the
representation of Germaine on November 19, 2013, well before Germaine’s plea hearing and
defendant’s trial, both of which occurred in January 2014. Although Nyenhuis rented office
space from Culpepper, they were not partners and did not share fees or discuss trial strategy.
The fact that Nyenhuis briefly stood in for Culpepper and represented Germaine and defendant at
the January 13, 2014 final conference until Culpepper arrived in the courtroom does not establish
a conflict of interest. The only substantive action taken by Nyenhuis before Culpepper arrived in
the courtroom was to express a lack of objection to the prosecutor’s motion to consolidate the
cases; defendant identifies no ground on which Nyenhuis could have objected to the motion to
consolidate or any way in which the interests of defendant and Germaine differed with respect to
whether the cases should be consolidated. Also notable is that defendant and Germaine were not
ultimately tried together; Germaine pleaded guilty, after which defendant proceeded to a jury
trial. See Cuyler, 446 U.S. at 347 (“The provision of separate trials for [the respondent] and his
codefendants significantly reduced the potential for a divergence in their interests.”).
Further, defendant has failed to establish that an actual conflict of interest adversely
affected Nyenhuis’s performance. Defendant asserts that the purported conflict of interest
caused Nyenhuis not to call Germaine as a witness at defendant’s trial. But the record does not
support such a conclusion. At the Ginther hearing, Nyenhuis testified that the reason he did not
call Germaine to testify at trial was because Germaine’s story was not credible:
The story wasn’t credible, and I thought it would be perceived as one
brother lying to protect the other brother. And I thought that’s what the
prosecution would paraphrase it as. And I thought the alibi witnesses were
sufficient to show that [defendant] was – [defendant] was not there.
Nyenhuis concluded that Germaine would not have been a credible witness because Germaine
would not identify the purported real shooter. Nyenhuis did not believe that Germaine’s
testimony would help the defense on the key issue of identification of the shooter. Nyenhuis
further explained that he and defendant “both agreed that Germaine would not testify. I
discussed everything of importance with [defendant].” Nyenhuis’s testimony regarding his
reason for declining to call Germaine at trial is buttressed by Germaine’s own testimony at the
Ginther hearing. Germaine acknowledged telling Nyenhuis that he wanted to testify at trial to
exonerate defendant but that he did not want to identify who the shooter actually was.6
6
Germaine later claimed at the Ginther hearing that, if called to testify at trial, he would have
identified the shooter by name. In an affidavit attached to defendant’s motion for
reconsideration after the Ginther hearing, Germaine finally identified by name the person who
was supposedly the real shooter. The parties devote considerable argument in their supplemental
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Decisions about whether to call witnesses are presumed to be matters of trial strategy, which this
Court will not second-guess. People v Davis, 250 Mich. App. 357, 368; 649 NW2d 94 (2002).
The record establishes, then, that Nyenhuis’s declination to call Germaine as a witness at trial
was based on a strategic assessment that Germaine lacked credibility and was not an adverse
effect of a purported conflict of interest.
Defendant also claims that the alleged conflict of interest caused Nyenhuis to: refrain
from engaging in plea negotiations that would have called for defendant to testify against
Germaine; refrain from calling character witnesses who would have shed a good light on
defendant but a negative light on Germaine; refrain from pointing to Germaine as the triggerman
at defendant’s trial; and refrain from calling defendant as a witness at his own trial out of fear
that he would reveal the identity of the shooter contrary to Germaine’s preference to conceal the
shooter’s identity. None of these assertions have any support in the record. There is no evidence
that a conflict of interest existed, let alone that it caused Nyenhuis to refrain from taking any of
these actions. Further, there is no indication that defendant was interested in a plea agreement.
In fact, the record reflects that the prosecutor made a plea offer and that defendant wanted to go
to trial rather than accept the plea offer. Nor is there any support in the record for the assertion
that defendant wanted to testify but was not called by Nyenhuis due to Germaine’s preference to
conceal the shooter’s identity. At trial, outside the presence of the jury, defendant stated that he
had decided of his own free will not to testify and that it was his choice not to do so because he
did not think it was necessary. Defendant identifies no basis in the record to conclude that he
would have pointed to Germaine as the shooter but for Nyenhuis’s brief representation of
Germaine. Overall, then, defendant has failed to establish that an actual conflict of interest
adversely affected Nyenhuis’s representation.
Defendant next argues in both of his supplemental appellate briefs that Nyenhuis was
ineffective because he failed to investigate the prosecutor’s case by interviewing the prosecution
witnesses before selecting a defense strategy. Defendant also suggests that he was constructively
denied counsel and that prejudice should therefore be presumed because Nyenhuis’s lack of
preparation rendered him unable to subject the prosecutor’s case to meaningful adversarial
testing. We disagree.
“When asserting ineffective assistance of counsel premised on counsel’s unpreparedness,
a defendant must demonstrate prejudice resulting from the lack of preparation. Lack of
experience, standing alone, does not establish ineffective assistance.” People v Bosca, 310 Mich
App 1, 37; 871 NW2d 307 (2015), held in abeyance 872 NW2d 492 (2015) (citation omitted).
Defense counsel has a duty to undertake reasonable investigations or to make a reasonable
decision that renders particular investigations unnecessary. Trakhtenberg, 493 Mich. at 52. Any
choice to limit an investigation “is reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. (quotation marks omitted). The failure
appellate briefs to whether Germaine was willing to identify the shooter at the Ginther hearing
itself. All of this is entirely beside the point because it is an assessment of Nyenhuis’s decisions
and actions before and during trial that is required. Germaine admitted telling Nyenhuis that he
did not want to identify the shooter; the record supports the conclusion that Nyenhuis’s
declination to call Germaine was based on his lack of credibility rather than a conflict of interest.
-10-
to conduct an adequate investigation comprises ineffective assistance of counsel if it undermines
confidence in the outcome of the trial. Russell, 297 Mich. App. at 716.
Defendant contends that Nyenhuis’s failure to interview civilian prosecution witnesses
rendered him insufficiently prepared for trial. At the Ginther hearing, Nyenhuis acknowledged
that he did not interview the civilian prosecution witnesses before trial. However, the failure to
interview witnesses does not by itself establish inadequate preparation. People v Caballero, 184
Mich. App. 636, 642; 459 NW2d 80 (1990). “It must be shown that the failure resulted in
counsel’s ignorance of valuable evidence which would have substantially benefited the accused.”
Id. Defendant fails to identify valuable evidence or information that Nyenhuis would have
discovered if he had interviewed the civilian prosecution witnesses before trial. Although
Nyenhuis did not interview the civilian prosecution witnesses, he did conduct an investigation.
Nyenhuis interviewed Germaine multiple times regarding his version of the facts. Nyenhuis
attempted to talk to Marquisha after the preliminary examination, but she shook her head
indicating that she did not want to talk to him. Nyenhuis conducted a search of witnesses’
criminal records. He investigated why Jermaine King was in jail by looking it up on a computer
program and conducting a jail inmate search. Nyenhuis indicated that he also conducted
research for information regarding the witnesses on Facebook. Nyenhuis read the witnesses’
statements obtained through discovery and conducted the preliminary examination. He
consulted other lawyers regarding strategy. He talked to the two alibi witnesses before trial.
Nyenhuis concluded that an alibi defense, along with the argument that the prosecution witnesses
had misidentified or were framing defendant, was the strongest defense available. Overall, then,
the record refutes defendant’s contention that Nyenhuis failed to conduct an adequate
investigation such that confidence in the outcome of the trial has been undermined.
Defendant’s argument that he was constructively denied counsel due to Nyenhuis’s lack
of preparation is also unavailing. This argument is premised on defendant’s view that Nyenhuis
conducted no investigation and thus could not have formulated a reasonably informed defense
strategy. This premise is factually unsupported for the reasons discussed above.
More generally, defendant’s suggestion that Nyenhuis failed to subject the prosecutor’s
case to meaningful adversarial testing is devoid of merit. As our Supreme Court explained in
People v Frazier, 478 Mich. 231, 243; 733 NW2d 713 (2007):
Most claims of ineffective assistance of counsel are analyzed under the
test developed in Strickland, supra. Under this test, counsel is presumed
effective, and the defendant has the burden to show both that counsel’s
performance fell below objective standards of reasonableness, and that it is
reasonably probable that the results of the proceeding would have been different
had it not been for counsel’s error. Strickland, supra at 687, 690, 694. But in
[United States v Cronic, 466 U.S. 648, 659-662; 104 S. Ct. 2039; 80 L. Ed. 2d 657
(1984)], the United States Supreme Court identified three rare situations in which
the attorney’s performance is so deficient that prejudice is presumed. One of
these situations involves the complete denial of counsel at a “critical stage” of the
proceedings.
-11-
“The other two situations in which prejudice is presumed are as follows: (1) ‘counsel entirely
fails to subject the prosecution’s case to meaningful adversarial testing’; and (2) where counsel is
called upon to render assistance under circumstances where competent counsel very likely could
not.” Frazier, 478 Mich. at 243 n 10, citing Cronic, 466 U.S. at 659-660. With respect to a
defense counsel’s alleged failure to subject the prosecutor’s case to meaningful adversarial
testing, “[t]he Cronic test applies when the attorney’s failure is complete, while the Strickland
test applies when counsel failed at specific points of the proceeding.” Frazier, 478 Mich. at 244,
citing Bell v Cone, 535 U.S. 685, 697; 122 S. Ct. 1843; 152 L. Ed. 2d 914 (2002). “For purposes of
distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree
but of kind.” Bell, 535 U.S. at 697. See also Florida v Nixon, 543 U.S. 175, 189; 125 S. Ct. 551;
160 L. Ed. 2d 565 (2004) (noting that the Cronic presumption of prejudice is “reserved for
situations in which counsel has entirely failed to function as the client’s advocate.”) (emphasis
added).
Nyenhuis did not fail to subject the prosecutor’s case to meaningful adversarial testing.
As Nyenhuis explained at the Ginther hearing, he took numerous actions on defendant’s behalf,
including: filing a motion to quash on the ground that there was no evidence of an intent to kill;
filing a notice of an alibi defense; successfully moving to exclude a photographic identification
of defendant; cross-examining the prosecution witnesses at trial in an attempt to undermine their
direct examination testimony; moving to admit Marsha Dae Jackson’s (Marsha) statement in
order to impeach Marquisha’s testimony; presenting the testimony of two alibi witnesses;
successfully seeking a directed verdict regarding two of the counts against defendant (one count
of assault with intent to commit murder and one count of assault with intent to do great bodily
harm, both with respect to Marquisha as the victim); and requesting a curative instruction
regarding a police officer’s testimony allegedly addressing the credibility of alibi witnesses.
Nyenhuis opined that he did more than a fair and adequate job representing defendant. We
conclude that Nyenhuis did not fail to subject the prosecutor’s case to meaningful adversarial
testing, and defendant is therefore not entitled to the presumption of prejudice under Cronic.
Defendant next argues in both of his supplemental appellate briefs that the failure to
interview Marsha and to call her to testify at trial comprised ineffective assistance of counsel.
Defendant contends that Marsha would have been a valuable impeachment witness against
Marquisha and Jermaine King because Marquisha made threats against Marsha in an attempt to
get her to present false testimony in an unrelated criminal case against Jermaine King.
Defendant asserts that Marsha could also have offered eyewitness testimony concerning the facts
of the present case. Defendant’s argument is unavailing.
At trial, Nyenhuis asked Marquisha on cross-examination if she had ever asked anyone to
lie to the police or threatened anyone to make them lie to the police, and Marquisha denied
having done so. After a bench conference held off the record, the following exchange occurred:
THE COURT: Okay.
Did you – did- ma’am, did you – have you ever told anybody to lie to the
police?
THE WITNESS: No.
-12-
THE COURT: Okay.
Then it would be impeachment. She’s not saying she can’t recall, she’s
just saying she never did.
MR. NYENHUIS: Right.
THE COURT: So, the proper thing to do would be to impeach her,
because her recollection, obviously, cannot be recorded – I mean, refreshed.
Nyenhuis then indicated that he had no further questions for Marquisha. On the next day of trial,
Nyenhuis stated outside the presence of the jury that he wished to recall Marquisha to cross-
examine her concerning a July 10, 2013 police log report reflecting a claim by Marsha that
Marquisha had threatened Marsha in an attempt to make her lie in an unrelated criminal case
against Jermaine King. The trial court noted that Marquisha had denied making a threatening
statement. The following exchange then occurred:
MR. NYENHUIS: Well, I still want her to see it. Then I was going to ask
if she remembered it, now.
THE COURT: But if she’s saying: “I don’t - “ “I did not say that,” then
you’re talking about impeachment by extrinsic evidence, which is, i.e., the
statement, is that correct?
MR. NYENHUIS: Yes.
THE COURT: And at this point, I believe it’s collateral, and I’m not
going to allow it. However, I will allow you to call her sister.
MR. NYENHUIS: Right.
THE COURT: Is she available to you?
MR. NYENHUIS: Not to me, at this time, your Honor.
THE COURT: All right.
Well, your objection is noted for the record. And I’m going to deny it, at
this point.
At the Ginther hearing, Marsha testified. She confirmed that she made the report to the
police regarding Marquisha’s threat. She further testified that the police report was accurate and
that she had signed an affidavit to the same effect as the police report. Marquisha made this
threat approximately 1½ months before the crimes in the present case were committed in August
2013. Marsha testified that Marquisha’s threat had nothing to do with the crimes in this case and
that Marquisha never told Marsha to lie about this case. When questioned at the Ginther hearing
about whether testimony from Marsha would have been helpful to the defense at trial, Nyenhuis
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stated that “I believe it could have went [sic] either way.” He further explained, “I mean if she
could have credibly testified, it might have helped, it might not have.”
Defendant argues that Nyenhuis should have called Marsha as a witness at trial to
impeach Marquisha’s credibility. But Nyenhuis explained to the trial court that Marsha was
unavailable at the time of trial. There is nothing in the record to establish that she could have
been located and produced. Contrary to defendant’s claim, the trial court did not offer to grant a
continuance until Marsha could be produced. Further, defendant has not shown that Marsha’s
testimony in this case about Marquisha’s threat in an unrelated case more than a month before
the crimes in this case were committed would have been reasonably likely to produce a different
outcome in this case. Marquisha’s threat against Marsha was to protect Marquisha’s husband,
Jermaine King concerning the prosecution of him for a crime unrelated to the matter at hand.
Her motivation to protect her husband in another case would not provide a reason for Marquisha
to falsely accuse defendant in this case or to urge other witnesses to do so. There is no evidence
that Marquisha had a motive to falsely accuse defendant. Defendant suggests that Marsha’s
testimony would also have impeached Jermaine King’s credibility, but there is no evidence that
he assisted or encouraged Marquisha’s alleged threat against Marsha.
Nor could Marsha have provided eyewitness or alibi testimony in this case that was
reasonably likely to produce a different outcome. At the Ginther hearing, Marsha testified that
she had never seen defendant before the Ginther hearing and that she did not know where
defendant was on the date of the shooting. Marsha was not present on Durand Street at the time
of the shooting; instead, she was at her house on Parker Street. She saw Germaine driving in a
car by himself on Parker Street three times on the date of the shooting. Marsha testified at the
Ginther hearing that Germaine was alone in his vehicle when she saw him on Parker Street and
that she saw his car go south on Parker Street, she heard a shot, then his car backed up and she
heard a few more shots. She did not see any shots and was unsure whether the shots came from
the car or the house. Nyenhuis had already spoken to Germaine several times and Germaine
ultimately pleaded guilty concerning the incident. Nyenhuis was well aware, based on
Germaine’s own statements, that a second person was in the car during the shooting. Thus, not
only was Marsha’s testimony not reasonably likely to have produced a different outcome at trial,
counsel made a strategic, and perhaps ethical, decision not to call as a witness someone who’s
testimony directly conflicted with that of the co-defendant’s admitted statement to being present
with another person at the scene and shots being fired from the car. Accordingly, we conclude
that the failure to call Marsha at trial did not deprive defendant of a substantial defense and thus
did not constitute ineffective assistance of counsel. Russell, 297 Mich. App. at 716; Chapo, 283
Mich. App. at 371.
Next, defendant argues in his supplemental appellate brief filed before remand that he
was deprived of the effective assistance of counsel when Nyenhuis failed to object and request a
cautionary instruction concerning testimony by Dattolo, the officer-in-charge. Defendant claims
that Dattolo’s testimony indicated his belief in defendant’s guilt. We disagree.
“[A] witness cannot express an opinion on the defendant’s guilt or innocence of the
charged offense[.]” People v Fomby, 300 Mich. App. 46, 53; 831 NW2d 887 (2013), quoting
People v Bragdon, 142 Mich. App. 197, 199; 369 NW2d 208 (1985); see also Heft, 299 Mich. App.
at 81 (“A witness may not opine about the defendant’s guilt or innocence in a criminal case.”).
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The issue of a defendant’s guilt or innocence is a question for the jury to resolve. People v
Suchy, 143 Mich. App. 136, 149; 371 NW2d 502 (1985).
Dattolo did not express an opinion concerning defendant’s guilt or innocence. The
challenged testimony was in response to a preliminary question about how Dattolo came to be an
officer-in-charge, and Dattolo was describing his responsibilities as the officer-in-charge.
Dattolo was merely explaining in general that his duties include collecting evidence and
presenting it to the prosecutor, and that the evidence needed to support the case. Dattolo’s
language may have been somewhat imprecise in stating that he – as opposed to the prosecutor –
has to prove a case beyond a reasonable doubt, but this language did not amount to an expression
of an opinion that defendant was guilty. Dattolo did not convey anything improper but merely
informed the jury of the process by which the police collect evidence to present to the prosecutor
for use in the case. An objection would therefore have been meritless, and “[d]efense counsel is
not required to make meritless objections.” Heft, 299 Mich. App. at 83.
Further, even if Dattolo’s testimony was somewhat improper due to the lack of precision
in his language, any prejudice was alleviated by the trial court’s final instructions to the jury.
Although no cautionary instruction was requested, the jurors were nonetheless instructed before
deliberation that it was their role alone to decide the facts of the case, including whether they
believed the testimony of the witnesses, and that the testimony of police officers should be
evaluated by the same standard used to evaluate the testimony of any other witness. The jurors
were thus adequately apprised that it was their role alone – and not that of the officer-in-charge –
to decide the facts of the case. “It is well established that jurors are presumed to follow their
instructions.” People v Graves, 458 Mich. 476, 486; 581 NW2d 229 (1998). Defendant has thus
failed to demonstrate a reasonable probability of a different outcome but for the failure to object
or request a cautionary instruction.
B. JUDICIAL IMPARTIALITY
Defendant argues in his supplemental appellate brief filed before remand that he was
denied a fair and impartial trial on the basis of judicial misconduct at trial. We disagree.
To preserve an argument that the trial court engaged in judicial misconduct, the defendant
must object to the trial court’s behavior on that basis in the trial court. People v Sardy, 216 Mich
App 111, 117-118; 549 NW2d 23 (1996). Because defendant did not object in the trial court on
the ground of judicial misconduct, the issue is unpreserved. “The question whether judicial
misconduct denied [a] defendant a fair trial is a question of constitutional law that this Court
reviews de novo.” People v Stevens, 498 Mich. 162, 168; 869 NW2d 233 (2015). Unpreserved
issues are reviewed for plain error affecting substantial rights. Carines, 460 Mich. at 763-764.7
In Stevens, 498 Mich. at 164, our Supreme Court explained:
7
But when the issue of judicial misconduct is preserved and the veil of judicial impartiality was
pierced, a structural error requiring automatic reversal exists. See Stevens, 498 Mich. at 178-180.
-15-
A trial judge’s conduct deprives a party of a fair trial if the conduct pierces
the veil of judicial impartiality. A judge’s conduct pierces this veil and violates
the constitutional guarantee of a fair trial when, considering the totality of the
circumstances, it is reasonably likely that the judge’s conduct improperly
influenced the jury by creating the appearance of advocacy or partiality against a
party. In evaluating the totality of the circumstances, the reviewing court should
inquire into a variety of factors including, but not limited to, the nature of the trial
judge’s conduct, the tone and demeanor of the judge, the scope of the judicial
conduct in the context of the length and complexity of the trial and issues therein,
the extent to which the judge’s conduct was directed at one side more than the
other, and the presence of any curative instructions, either at the time of an
inappropriate occurrence or at the end of trial. When the issue is preserved and a
reviewing court determines that the trial judge’s conduct pierced the veil of
judicial impartiality, the court may not apply harmless-error review. Rather, the
judgment must be reversed and the case remanded for a new trial.
In determining whether a judge’s conduct pierced the veil of judicial impartiality and
denied the defendant a fair trial, a fact-specific analysis is required. Id. at 171. “A single
inappropriate act does not necessarily give the appearance of advocacy or partiality, but a single
instance of misconduct may be so egregious that it pierces the veil of impartiality.” Id. “[A]
reviewing court should consider the nature or type of judicial conduct itself. Judicial misconduct
may come in myriad forms, including belittling of counsel, inappropriate questioning of
witnesses, providing improper strategic advice to a particular side, biased commentary in front of
the jury, or a variety of other inappropriate actions.” Id. at 172-173.
Defendant argues that the trial court pierced the veil of judicial impartiality by noting for
the record when two eyewitnesses, Jermaine King and Marquisha, each identified defendant in
the courtroom. Defendant suggests that the trial court engaged in misconduct by endorsing or
vouching for the eyewitnesses’ in-court identifications of defendant. We disagree. The trial
court merely noted for the record that the eyewitnesses had identified defendant in the
courtroom. Jermaine King and Marquisha each pointed to a person in the courtroom and
described the person’s clothing when identifying the front seat passenger of the car from which
the gunshots were fired. The trial court simply stated that the record shall reflect that the
eyewitnesses were identifying defendant in the courtroom. The trial court did not tell the jurors
anything that they could not see for themselves. Defendant fails to provide any basis in the
record to conclude that defendant was not the person to whom the eyewitnesses were pointing
and whose clothes they were describing. Hence, the trial court did not engage in any
inappropriate conduct. There is no indication that the court’s tone and demeanor were improper.
The court merely stated, “It will so reflect,” in response to the prosecutor’s request for the record
to reflect that the eyewitnesses were describing defendant’s clothes or pointing to defendant.
The scope of the court’s comments was limited and did not exhibit partiality. The trial court said
nothing to suggest the court’s own opinion regarding the credibility of the eyewitnesses’
testimony. Moreover, the trial court’s final instructions to the jury ensured a fair trial on this
issue. The trial court instructed the jury as follows:
My comments, rulings, questions and instructions are also not evidence.
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It is my duty to see that the trial is conducted according to the law and to
tell you the law that applies to this case.
However, when I make a comment, or give an instruction, I am not trying
to influence your vote or express a personal opinion about the case.
If you believe I have an opinion about how you should decide this case,
you must pay no attention to that opinion. You are the only judges of the facts,
and you should decide this case from the evidence.
Because jurors are presumed to follow their instructions, the trial court’s instruction ensured a
fair trial and cuts against any finding of judicial bias in this case. Stevens, 498 Mich. at 177, 190.
C. RIGHT OF CONFRONTATION
Defendant argues in his supplemental brief filed before remand that his constitutional
right of confrontation was violated when the trial court denied his request to recall Marquisha for
further cross-examination about whether she made threats. We disagree.
To preserve a Confrontation Clause claim, a defendant must object at trial on this ground.
People v McPherson, 263 Mich. App. 124, 137; 687 NW2d 370 (2004). Although defendant
sought to recall Marquisha to cross-examine her about the police report indicating she had
threatened Marsha, defendant did not object on the ground of the Confrontation Clause.
Therefore, the Confrontation Clause issue is unpreserved.
“Whether defendant was denied his right of confrontation involves a question of
constitutional law that we review de novo.” Henry, 305 Mich. App. at 152. Unpreserved
constitutional issues are reviewed for plain error affecting substantial rights. Id., citing Carines,
460 Mich at 763. A trial court’s decision whether to recall a witness is reviewed for an abuse of
discretion. See People v Williams, 470 Mich. 634, 643; 683 NW2d 597 (2004). An abuse of
discretion occurs if the trial court’s decision falls outside the range of reasonable and principled
outcomes. People v Waclawski, 286 Mich. App. 634, 689; 780 NW2d 321 (2009).
“The Confrontation Clause of the United States Constitution provides that ‘[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted by the witnesses
against him[.]’ US Const, Am VI. The Michigan Constitution also affords a defendant this right
of confrontation. Const 1963, art 1, § 20.” Henry, 305 Mich. App. at 153 (citation omitted;
alteration in original). “The right of confrontation includes the right to cross-examine
witnesses.” Richardson v Marsh, 481 U.S. 200, 206; 107 S. Ct. 1702; 95 L. Ed. 2d 176 (1987).
“The right of confrontation insures that the witness testifies under oath at trial, is available for
cross-examination, and allows the jury to observe the demeanor of the witness.” People v Yost,
278 Mich. App. 341, 370; 749 NW2d 753 (2008) (quotation marks and citation omitted). “The
Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the defense might wish.”
United States v Owens, 484 U.S. 554, 559; 108 S. Ct. 838; 98 L. Ed. 2d 951 (1988) (quotation
marks, alternation, and citations omitted).
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The right of cross-examination is not without limits; a defendant does not have “an
unlimited right to admit all relevant evidence or cross-examine on any subject.” People v
Adamski, 198 Mich. App. 133, 138; 497 NW2d 546 (1993). A defendant is, however, “guaranteed
a reasonable opportunity to test the truth of a witness’ testimony.” Id. “Limitations on cross-
examination that prevent a defendant from placing before the jury facts from which bias,
prejudice, or lack of credibility of a prosecution witness might be inferred constitutes denial of
the constitutional right of confrontation.” People v Gaines, 306 Mich. App. 289, 316; 856 NW2d
222 (2014) (quotation marks, alteration, and citation omitted). “Cross-examination may be
denied with respect to collateral matters bearing only on general credibility, as well as on
irrelevant issues.” People v Canter, 197 Mich. App. 550, 564; 496 NW2d 336 (1992).
MRE 611(c) states, in relevant part: “A witness may be cross-examined on any matter
relevant to any issue in the case, including credibility.” MRE 608(b) provides:
Specific instances of the conduct of a witness, for the purpose of attacking
or supporting the witness’ credibility, other than conviction of crime as provided
in Rule 609, may not be proved by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or untruthfulness, be inquired
into on cross-examination of the witness (1) concerning the witness’ character for
truthfulness or untruthfulness, or (2) concerning the character for truthfulness or
untruthfulness of another witness as to which character the witness being cross-
examined has testified.
Defendant was not denied his right of confrontation. His attorney, Nyenhuis, was
afforded an opportunity to cross-examine Marquisha and in fact did so, including on the issue
whether Marquisha had ever threatened anyone to make them lie. After a bench conference, the
trial court itself asked Marquisha if she had ever told anyone to lie to the police, and she again
denied having done so. Nyenhuis was then offered an opportunity for further cross-examination
and impeachment of Marquisha, but Nyenhuis indicated he had no further questions. Defendant
was thus afforded a reasonable opportunity to test the truth of Marquisha’s testimony. The trial
court’s denial of defendant’s request to recall Marquisha to testify again on the next day of trial
fell within the range of principled outcomes. Although Nyenhuis apparently did not obtain the
police log report concerning Marquisha’s alleged threat until after she completed her testimony,
the facts remain that Nyenhuis had already cross-examined Marquisha about whether she made
threats and she denied having done so. Marquisha did not express that she lacked a recollection
of whether she had made threats such that her memory needed to be refreshed by presenting the
police log report to her. See MRE 612 (providing for the use of a writing or object to refresh a
witness’s memory). The trial court did not abuse its discretion in refusing to recall Marquisha.
Even if the trial court had erred in refusing to recall Marquisha, the error would not
require reversal. Given her categorical denial of having made threats, there is no indication that
presenting the police report to her would have altered her testimony; again, she did not state that
she lacked a memory of having made threats such that her recollection needed to be refreshed.
Further, even if it could have somehow been established that Marquisha had threatened Marsha,
defendant has not shown that evidence of Marquisha’s threat in an unrelated case more than a
month before the crimes in this case were committed would have been reasonably likely to
produce a different outcome in the present case. The alleged threat against Marsha was to
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protect Marquisha’s husband, Jermaine King. This motivation to protect her husband in another
case would not provide a reason for Marquisha to falsely accuse defendant in this case or to urge
other witnesses to do so. There is no evidence that Marquisha had a motive to falsely accuse
defendant. Defendant has therefore failed to demonstrate an outcome-determinative plain error.
D. JUDICIAL FACT-FINDING AT SENTENCING
Defendant argues in his supplemental appellate brief filed after remand that his Sixth and
Fourteenth Amendment rights were violated by judicial fact-finding in the scoring of Offense
Variables (OVs) 6 and 13. We disagree.
To preserve an argument that a Sixth Amendment violation occurred due to judicial fact-
finding in the scoring of OVs, a defendant must raise an objection on that ground at sentencing
or in a motion for resentencing or a motion to remand. See People v Steanhouse, 313 Mich. App.
1, 42; 880 NW2d 297 (2015), lv gtd 499 Mich. 934 (2016); People v Terrell, 312 Mich. App. 450,
464; 879 NW2d 294 (2015), held in abeyance 878 NW2d 480 (2016). At sentencing, defendant
objected to the assessment of 25 points for OV 13 but agreed with the assessment of 25 points
for OV 6. Thus, he waived any review of the assessment of 25 points for OV 6. And, defendant
did not object to the scoring of either OV on the basis of unconstitutional judicial fact-finding.
On appeal, defendant filed a motion to remand but did not raise the Alleyne8 issue in that motion.
This Court granted the motion to remand and directed that the proceedings on remand were to be
limited to the issues raised in the motion to remand. People v Howard, unpublished order of the
Court of Appeals, entered May 28, 2015 (Docket No. 320695). On remand, defendant filed a
motion for resentencing raising the present issue under Alleyne and Lockridge.9 The trial court
denied the motion for resentencing without explaining its reasoning.
“When an appellate court remands a case with specific instructions, it is improper for a
lower court to exceed the scope of the order.” Russell, 297 Mich. App. at 714. If a party on
remand raises issues that exceed the scope of the remand order, the lower court cannot consider
those issues. People v McChester, 310 Mich. App. 354, 360 n 2; 873 NW2d 646 (2015). Here,
this Court limited the proceedings on remand to the issues raised in defendant’s motion to
remand, which did not include the Alleyne issue. Defendant’s motion for resentencing on
remand raising the Alleyne issue thus exceeded the scope of this Court’s remand order. And,
because defendant did not otherwise raise the Alleyne issue at sentencing or in a properly filed
motion for resentencing or motion to remand, the issue is unpreserved.10
8
Alleyne v United States, 570 US ___; 133 S. Ct. 2151; 186 L. Ed. 2d 314 (2013).
9
People v Lockridge, 498 Mich. 358; 870 NW2d 502 (2015).
10
Further, defendant has not properly raised this issue on appeal. This Court’s order granted
defendant permission to file a supplemental appellate brief after remand “pertaining to the issues
raised on remand . . . .” People v Howard, unpublished order of the Court of Appeals, entered
May 28, 2015 (Docket No. 320695). As discussed, this Court limited the issues on remand to
those issues raised in defendant’s motion to remand, which did not include the present issue.
-19-
This issue may also be deemed waived because defendant has failed to provide this Court
with a copy of the presentence investigation report. See MCR 7.212(C)(7) (“If an argument is
presented concerning the sentence imposed in a criminal case, the appellant’s attorney must send
a copy of the presentence report to the court at the time the brief is filed[.]”); People v Rodriguez,
212 Mich. App. 351, 355; 538 NW2d 42 (1995) (failure to provide this Court with a copy of the
presentence investigation report constitutes waiver of a sentencing issue); People v Oswald, 208
Mich. App. 444, 446; 528 NW2d 782 (1995) (same). Further, Defendant argues that the
assessment of 25 points each for OV 6 and OV 13 required the trial court to find facts beyond
those established by the jury verdict. However, defendant fails to present any argument in
support of this assertion. That is, defendant does not explain how he has reached the conclusion
that the assessment of 25 points each for OV 6 and OV 13 required judicial fact-finding. “An
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment with little or no
citation of supporting authority.” People v Kelly, 231 Mich. App. 627, 640-641; 588 NW2d 480
(1998). “The failure to brief the merits of an allegation of error constitutes an abandonment of
the issue.” McPherson, 263 Mich. App. at 136. Because defendant has waived review of this
unpreserved issue, we decline to address it.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Deborah A. Servitto
/s/ Douglas B. Shapiro
Defendant thus lacked authority to raise this issue on remand, and he likewise lacked authority to
raise the issue in his supplemental appellate brief filed after remand. We will nonetheless
address the issue.
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