People of Michigan v. Derrick Stacy Chappel ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 22, 2015
Plaintiff-Appellee,
v No. 321480
Wayne Circuit Court
DERRICK STACY CHAPPEL, LC No. 13-010259-FC
Defendant-Appellant.
Before: GADOLA, P.J., and JANSEN and BECKERING, JJ.
PER CURIAM.
Defendant was convicted of assault with intent to commit murder, MCL 750.83,
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) (second offense),
MCL 750.227b. Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to
concurrent terms of 40 to 80 years’ imprisonment for the assault with intent to commit murder
and felon-in-possession convictions, and five years’ imprisonment for the felony-firearm (second
offense) conviction. On appeal, defendant challenges his convictions and his sentence for the
felon-in-possession conviction. We affirm.
This case arises from an argument between defendant and a neighbor, Ronald Simmons,
at Simmons’s house in Detroit, Michigan. Defendant shot the unarmed Simmons several times
at close range while numerous volunteers from the Michigan Urban Farming Initiative (MUFI)
worked in a community garden across the street. Defendant asked the court to appoint different
defense counsel for him during a pretrial hearing, and the trial court denied his request.
I. DEPARTURE FROM SENTENCING GUIDELINES
Defendant first contends that his sentence for felon-in-possession posed a significant
departure from the proper guideline sentencing range, that the trial court failed to provide
substantial and compelling reasons for the departure, that the departure resulted in a sentence that
was disproportionate to defendant’s offense, and that the conviction was not subject to sentence
enhancement under the habitual offender statute because it was not a serious offense. We
disagree.
We review for an abuse of discretion a trial court’s determination that “objective and
verifiable factors present in a particular case constitute substantial and compelling reasons to
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depart from the statutory minimum sentence[.]” People v Lopez, 305 Mich App 686, 689; 854
NW2d 205 (2014) (citation omitted). “The interpretation and application of the legislative
sentencing guidelines . . . involve legal questions that this Court reviews de novo.” People v
McGraw, 484 Mich 120, 123; 771 NW2d 655 (2009).
MCL 777.14, which governs presentence investigation reports, provides, in part:
(2) A presentence investigation report prepared under subsection (1) shall include
all of the following:
* * *
(e) For a person to be sentenced under the sentencing guidelines set forth in
chapter XVII, all of the following:
(i) For each conviction for which a consecutive sentence is authorized or
required, the sentence grid in part 6 of chapter XVII that contains the
recommended minimum sentence range.
(ii) Unless otherwise provided in subparagraph (i), for each crime having
the highest crime class, the sentence grid in part 6 of chapter XVII that
contains the recommended minimum sentence range.
(iii) Unless otherwise provided in subparagraph (i), the computation that
determines the recommended minimum sentence range for the crime
having the highest crime class. [Emphasis added.]
Thus, when sentencing a criminal defendant under the sentencing guidelines, a trial court
employs a presentence investigation report containing a guideline sentencing range only for the
most serious offense unless the court imposes consecutive sentences. MCL 777.14. Extending
this logic, we have specifically held that, so long as the trial court properly scores the guidelines
for the conviction with the highest crime classification, it need not independently score the
guidelines for each of a defendant’s concurrent convictions. See People v Mack, 265 Mich App
122, 126-130; 695 NW2d 342 (2005).
We recently addressed this very issue in a nearly identical context in Lopez. There, the
defendant was found guilty of armed robbery, assault with intent to rob while armed, felony-
firearm, felon-in-possession, and carrying a concealed weapon. Lopez, 305 Mich App at 688.
The trial court sentenced the defendant, as a fourth habitual offender, to concurrent prison terms
of 35 to 55 years on all counts but the felony-firearm. Id. The defendant appealed, arguing that
the trial court erred in failing to individually score the sentencing guidelines for each of his
convictions and by failing to sentence him according to the applicable guidelines sentencing
range for each conviction. Id.
We affirmed the defendant’s sentences. Lopez, 305 Mich App at 689. Hewing to the
reasoning in Mack and the plain language of MCL 777.14, we stated that “because the sentences
for defendant’s lower-crime-class offenses were to be served concurrently with the highest-class-
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felony sentence, the [lower-class-offense] guidelines did not need to be scored and there was no
departure.” Lopez, 305 Mich App at 692.
In this case, as in Lopez, the trial court properly scored defendant’s most serious offense,
assault with intent to commit murder. See MCL 777.16d (providing that assault with intent to
commit murder is a Class A offense for sentencing purposes); MCL 777.16m (listing felon-in-
possession as a Class E offense); MCL 777.62 (for defendant’s appropriate sentencing grid). As
in Lopez, the trial court in this case sentenced defendant to concurrent prison terms, with the
exception of the sentence for his felony-firearm conviction. Defendant in this case does not
contend that the trial court erred in calculating his sentence for assault with intent to commit
murder, another similarity to the defendant in Lopez. Accordingly, our conclusion in Lopez is
applicable here: the trial court did not need to score defendant’s felon-in-possession conviction
because the court correctly sentenced him for his highest-class offense and because the court
sentenced him to concurrent prison terms. See Lopez, 305 Mich App at 692.
Although the foregoing analysis dispenses with defendant’s main argument, we will also
address defendant’s additional contention that his felon-in-possession conviction was not subject
to enhancement under the habitual offender statute because it was not a serious offense. MCL
769.12 governs sentencing enhancement for a criminal defendant with three or more prior felony
convictions. It provides, in part:
(1) If a person has been convicted of any combination of 3 or more felonies or
attempts to commit felonies, whether the convictions occurred in this state or
would have been for felonies or attempts to commit felonies in this state if
obtained in this state, and that person commits a subsequent felony within this
state, the person shall be punished upon conviction of the subsequent felony and
sentencing under section 13 of this chapter as follows:
(a) If the subsequent felony is a serious crime or a conspiracy to commit a
serious crime, and 1 or more of the prior felony convictions are listed
prior felonies, the court shall sentence the person to imprisonment for not
less than 25 years. Not more than 1 conviction arising out of the same
transaction shall be considered a prior felony conviction for the purposes
of this subsection only.
(b) If the subsequent felony is punishable upon a first conviction by
imprisonment for a maximum term of 5 years or more or for life, the court,
except as otherwise provided in this section or section 1 of chapter XI,
may sentence the person to imprisonment for life or for a lesser term.
[Emphasis added.]
By the plain language of the statute, then, a defendant with three or more prior felony
convictions who commits a subsequent felony faces a number of different outcomes, depending
on the nature of the subsequent felony. MCL 769.12. If the subsequent felony is a serious crime
and one of the defendant’s prior felonies was an offense that is listed in the statute, the defendant
is subject to a 25-year minimum sentence for the subsequent felony. MCL 769.12(1)(a). A
second outcome, however, provides that the trial court may sentence the defendant to life or a
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lesser term if the subsequent felony was punishable by a maximum term of five years or more.
MCL 769.12(1)(b). Thus, contrary to defendant’s assertion, his felon-in-possession conviction
need not have been classified as a serious crime in order to qualify for habitual offender
enhancement. See MCL 769.12. And because felon-in-possession is punishable by a maximum
term of five years, the court was free under the habitual offender statute to sentence defendant to
life or a lesser term for his felon-in-possession conviction. See MCL 750.224f(5); MCL
769.12(1)(b).1
II. REFUSAL TO APPOINT SUBSTITUTE COUNSEL
In a Standard 4 brief, defendant next contends that there was a breakdown in the attorney-
client relationship with defense counsel, that he and defense counsel experienced an
irreconcilable difference of opinion, and that defense counsel failed to work diligently on his
behalf in a number of ways. Defendant further contends that the trial court failed to adequately
inquire into this issue after he requested a new attorney at his pretrial hearing and that, as a
result, the court abused its discretion by denying his request. We disagree.
We review for an abuse of discretion a trial court’s decision regarding substitution of
counsel. People v Strickland, 293 Mich App 393, 397; 810 NW2d 660 (2011). “A trial court
abuses its discretion when its decision falls outside the range of reasonable and principled
outcomes.” Id. (citation and quotation marks omitted).
“An indigent defendant is guaranteed the right to counsel; however, he is not entitled to
have the attorney of his choice appointed simply by requesting that the attorney originally
appointed be replaced.” People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001)
(citation omitted). “Appointment of a substitute counsel is warranted only upon a showing of
good cause and where substitution will not unreasonably disrupt the judicial process.” Id. A
genuine disagreement over the use of a substantial defense or a fundamental trial tactic is good
cause. Id. Defense counsel’s inadequacy, lack of diligence, or disinterest may also establish
good cause, People v Ginther, 390 Mich 436, 441-442; 212 NW2d 922 (1973), as may the “
‘destruction of communication and a breakdown in the attorney-client relationship,’ ” People v
McFall, ___ Mich App ___, ___; ___ NW2d ___ (2015) (citation omitted); slip op at 3.
Conversely, a defendant does not establish good cause by expressing general unhappiness
with his or her representation or by making a mere allegation, unsupported by a substantial
reason, that he or she lacks confidence in the appointed attorney. Strickland, 293 Mich App at
398. A determination of whether good cause existed depends on the facts of each case. People v
Buie, 298 Mich App 50, 67; 825 NW2d 361 (2012). If a defendant asserts that good cause exists
to justify substitution of counsel, “the trial court should hear the defendant’s claim and, if there is
a factual dispute, take testimony and state its findings on the record.” Strickland, 293 Mich App
1
We note that our analysis remains the same in light of People v Lockridge, ___ Mich ___; ___
NW2d ___ (2015), since defendant does not argue that the trial court improperly engaged in
judicial fact-finding during sentencing, and the trial court was not required to score the felon-in-
possession conviction, as discussed above.
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at 397 (citation and quotation marks omitted). Even if the court fails to consider the defendant’s
allegation, however, we will not set aside the defendant’s conviction unless the record
demonstrates that defense counsel was actually inattentive to his or her responsibilities. Buie,
298 Mich App at 67.
In this case, defendant requested a new attorney at his pretrial hearing because (1) “only
one side [had] been told,” (2) defense counsel purportedly had a conflict of interest, and (3)
defense counsel had failed to discuss his potential sentence with him, fully investigate the case,
communicate with him, and talk to his witnesses. Defendant’s first ground, that his story had not
been told, does not constitute good cause, particularly because it would have been pointless and
counterproductive for defense counsel to lay out her theory of the case and strategy before trial.
See McFall, ___ Mich App at ___; slip op at 3; Traylor, 245 Mich App at 462; Ginther, 390
Mich at 441-442.
The trial judge asked defendant about his second ground, defense counsel’s conflict of
interest, and defendant only replied that he believed she did not have his best interests at heart.
A conflict of interest arises when a “real or seeming incompatibility” exists between the interests
of a lawyer’s two clients or between a lawyer’s private interests and public or fiduciary duties.
Black’s Law Dictionary (10th ed). Defendant provided no evidence that either condition existed
in association with defense counsel’s representation. Thus, defense counsel’s “conflict of
interest” also failed to establish good cause for substitution. See McFall, ___ Mich App at ___;
slip op at 3; Traylor, 245 Mich App at 462; Ginther, 390 Mich at 441-442.
Defendant’s allegations that defense counsel failed to communicate with him, investigate
his case, and talk to his witnesses could potentially establish good cause, but the record does not
support his allegations. The trial court appointed defense counsel on November 27, 2013.
Between that date and the February 20, 2014 pretrial hearing at which defendant requested new
counsel, defense counsel was in court with defendant on two other occasions. On both
occasions, she argued strenuously for a reduction in defendant’s bond. At the December 11,
2013 pretrial, defense counsel also told the court that defendant’s girlfriend “[had] been in
contact with me concerning his case.” Defendant did not express any issues with defense
counsel’s performance on either occasion. During the February 20, 2014 pretrial hearing,
defense counsel told the trial court,
I have not been to the jail to speak to him there yet. We’re still a month out from
his trial. I have gone over the materials. I am aware of the charges against him.
I’m aware of the allegations and the witnesses. I’m aware of his feeling on it, but
because I have not gone to the jail and actually sat down with him there he does
not feel I am trying to proceed with his case.
Contrary to defendant’s assertions, then, the record indicates that defense counsel was working
diligently on his case—even if she was not doing so in the manner or according to the timeline
that he would have preferred. There was, therefore, no real factual dispute about defendant’s
claim of good cause for substitution, and the trial judge was not required to take testimony
regarding the allegations or state his findings on the record. See Strickland, 293 Mich App at
397. Defendant also failed to note the existence of a breakdown in the attorney-client
relationship or any disagreements over the use of a substantial defense or a fundamental trial
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tactic. See McFall, ___ Mich App at ___; slip op at 3; Traylor, 245 Mich App at 462.
Accordingly, defendant failed to establish good cause to justify substitution of counsel, and the
court did not abuse its discretion in denying defendant’s request because the result did not fall
outside the range of reasonable or principled outcomes. See Strickland, 293 Mich App at 397.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, defendant contends in his Standard 4 brief that defense counsel’s failure to
sufficiently investigate the case against him, meet with and call defense witnesses to testify,
investigate the crime scene, visit defendant to discuss the case, and call defendant to testify at
trial all fell below an objective standard of reasonableness and that he was thereby prejudiced.
We disagree.
To preserve a claim of ineffective assistance of trial counsel for appellate review, a
defendant must move for a new trial or for a Ginther hearing. Lopez, 305 Mich App at 693.
Defendant did not move for a new trial or a Ginther hearing in the trial court. Therefore, this
issue is unpreserved for appellate review. See id.
“A claim of ineffective assistance of counsel presents a mixed question of law and fact.”
People v Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011). “This Court reviews a trial
court’s findings of fact, if any, for clear error, and reviews de novo the ultimate constitutional
issue arising from an ineffective assistance of counsel claim.” Id. A finding is clearly erroneous
if “ ‘the reviewing court is left with a definite and firm conviction that a mistake has been made.’
” Lopez, 305 Mich App at 693 (citation omitted). We review an unpreserved claim of
ineffective assistance of counsel for errors apparent on the record. Id.
“To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1)
that his attorney’s performance was objectively unreasonable in light of prevailing professional
norms; and (2) that he was prejudiced by the deficient performance.” People v Walker, 497
Mich 894, 895; 855 NW2d 744 (2014). To show prejudice, a defendant “must demonstrate a
reasonable probability that but for counsel’s errors, the result of the proceedings would have
been different.” People v Gaines, 306 Mich App 289, 300; 856 NW2d 222 (2014) (citation and
quotation marks omitted). A reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed
2d 674 (1984).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Eisen, 296 Mich App 326, 329; 820 NW2d 229 (2012) (citation
and quotation marks omitted). More specifically, there is a strong presumption that defense
counsel employed effective trial strategy, People v Payne, 285 Mich App 181, 190; 774 NW2d
714 (2009) (citation omitted), and we “will not substitute our judgment for that of counsel on
matters of trial strategy, nor will we use the benefit of hindsight when assessing counsel’s
competence,” People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008). “A
particular strategy does not constitute ineffective assistance of counsel simply because it does not
work.” People v Matuszak, 263 Mich App 42, 61; 687 NW2d 342 (2004). Importantly, too, the
“defendant has the burden of establishing the factual predicate for his claim of ineffective
assistance of counsel[.]” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
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A. DEFENSE WITNESSES
Counsel’s decision regarding whether to call a witness is presumed to be a matter of trial
strategy. People v Herron, 303 Mich App 392, 396; 845 NW2d 533 (2013), lv held in abeyance
846 NW2d 924 (2014). “In general, the failure to call a witness can constitute ineffective
assistance of counsel only when it deprives the defendant of a substantial defense.” Payne, 285
Mich App at 190 (citation and quotation marks omitted). A substantial defense is one that could
have made a difference in the trial’s outcome. People v Chapo, 283 Mich App 360, 371; 770
NW2d 68 (2009).
In his Standard 4 brief, defendant claims that he informed defense counsel of two
witnesses who were ready and able to assist with the defense: his neighbor, Jerome Jackson, and
his girlfriend, Debra Turner. At the outset, we note that the lower court record is devoid of any
reference to Turner, and that Jackson was mentioned fleetingly, anonymously, and never as a
potential witness. Logically, the record also lacks indicia regarding how their testimony may
have helped defendant. Accordingly, defendant has failed to establish the factual predicate for
his claim because our review is restricted to errors apparent on the record. See Lopez, 305 Mich
App at 693; Hoag, 460 Mich at 6.
Additionally, while we need not consider facts that are raised for the first time in
defendant’s Standard 4 brief, defendant overestimates the utility of Jackson’s and Turner’s
potential testimony. Defendant asserts that Jackson would have testified that Simmons was the
aggressor in the altercation, that Simmons had a weapon, that Jackson—not Simmons—was
responsible for cleaning up defendant’s yard, and that Simmons initially called defendant over to
his house on the day of the shooting. Only the former two assertions were relevant to whether
defendant committed the offenses with which he was charged, although the latter two could
arguably have been used to impeach Simmons’s testimony to some minimal extent.
Furthermore, Jackson was defendant’s friend and did not give a statement to police at the scene,
making it highly unlikely that the jury would have credited his contradictory testimony over that
of Simmons and the numerous disinterested MUFI volunteers. For Turner’s part, defendant
asserts that she would have testified that he paid Simmons in full for both jobs and that he had
given Simmons some scrap to exchange for money. Neither fact was relevant to whether
defendant shot Simmons or possessed a firearm. Defense counsel’s decision not to call Jackson
and Turner as witnesses was sound trial strategy, as their testimony would have either been
irrelevant or highly suspect. See Unger, 278 Mich App at 242-243. Defense counsel’s strategy
in this regard did not lead to defendant’s acquittal, but it was, nevertheless, sound. See
Matuszak, 263 Mich App at 61. Defendant therefore fails to establish a reasonable probability
that the outcome of the case would have been different had Jackson and Turner testified, and
thus, fails to show that defense counsel’s performance at trial prejudiced him. See Gaines, 306
Mich App at 300.
B. THE CRIME SCENE
“Trial counsel is responsible for preparing, investigating, and presenting all substantial
defenses.” Chapo, 283 Mich App at 371. As noted earlier, a substantial defense is one that
could have made a difference in the trial’s outcome. Id. “Failure to make a reasonable
investigation can constitute ineffective assistance of counsel.” People v McGhee, 268 Mich App
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600, 626; 709 NW2d 595 (2005). Provided that defense counsel makes a complete investigation,
however, the decision regarding what evidence to present is a matter of trial strategy. Wiggins v
Smith, 539 US 510, 521-522; 123 S Ct 2527; 156 L Ed 2d 471 (2003).
Defendant contends that he asked defense counsel to “go out to the scene of the crime so
that she could witness and introduce to the jury” that the physical layout of the scene made the
MUFI volunteers’ testimony incredible. Once again, the record does not support defendant’s
contention, meaning that he has failed to establish the factual predicate for this claim. See
Lopez, 305 Mich App at 693; Hoag, 460 Mich at 6. Furthermore, testimony from the MUFI
volunteers established that they saw the shooting clearly, if at a distance. Banika Jones testified
that the sun was still up, that she could readily identify Simmons and defendant, that she heard
some of the individual words they said during their argument, and that she had a clear view of
the incident with no obstructions. Maria Agnes Serrano, while she did not know Simmons or
defendant, described what both men did during the incident, provided a basic description of
defendant, and recognized him by his clothing when he rode his bicycle past the MUFI house.
Amy Swift also did not know either man, but she was able to describe defendant’s clothing, the
fact that he used a handgun, and even the way he held the gun. The record simply does not
support defendant’s claim that the dimensions of the crime scene rendered it impossible for the
witnesses to identify him or provide an account of the shooting.
Furthermore, assuming from the plain language of defendant’s Standard 4 brief that he
actually intended defense counsel to testify regarding her findings at the crime scene, the
Michigan Rules of Professional Conduct would have precluded such testimony. See MRPC 3.7
(providing that a lawyer may not represent a client and also appear as a witness in the same
proceeding unless the testimony relates to an uncontested issue or to the nature and value of legal
services rendered). Nor does defendant provide caselaw suggesting that defense counsel is
required to perform, like a latter-day Sherlock Holmes, an independent physical investigation at
the crime scene. Accordingly, defendant has failed to establish that defense counsel’s
performance in this regard fell below an objectively reasonable standard or prejudiced him at
trial. See Gaines, 306 Mich App at 300; Walker, 497 Mich at 895.
C. CONTACT AT THE JAIL
In the “Statement of Questions Presented” section of his Standard 4 brief, defendant
claims that defense counsel provided ineffective assistance by failing to visit him to discuss the
case, but he neglects to provide caselaw or an argument in his brief. “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.” Payne, 285 Mich App at 196. Defendant has, therefore, abandoned the issue. See
People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001).
Assuming that defendant had not abandoned the issue, however, the record indicates that
he had numerous opportunities to discuss the case with defense counsel face to face. The two
met—and, one assumes, spoke about the case—at the calendar conference on November 27,
2013; the pretrial hearing on December 11, 2013; the final conference on February 3, 2014; and
the pretrial hearing on February 20, 2014. In that last pretrial hearing, defense counsel admitted
that she had not yet visited the jail, but the fact that defendant raised no complaints on that score
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at his trial or sentencing suggests that she visited him there before trial. Furthermore,
defendant’s own Standard 4 brief concedes that defense counsel did indeed visit him there. The
brief and defendant’s attached self-serving affidavit complain more of the frequency and
duration of defense counsel’s visits than a complete lack thereof, and defendant fails to provide
caselaw to support his implicit contention that three face-to-face meetings, albeit brief ones,
indicate objectively unreasonable performance. Defendant also fails to explain how longer or
more frequent visits from defense counsel might have provided a different outcome at trial.
Accordingly, even if defendant had not already abandoned the issue, he has failed to establish
ineffective assistance of counsel on this point. See Gaines, 306 Mich App at 300; Walker, 497
Mich at 895.
D. DECISION NOT TO TESTIFY
Both the United States Constitution and the Michigan Constitution confer upon a criminal
defendant the right to testify at trial. US Const, Am XIV; Const 1963, art 1, §§ 17, 20. But
“[a]lthough counsel must advise a defendant of this right, the ultimate decision whether to testify
at trial remains with the defendant.” People v Bonilla-Machado, 489 Mich 412, 419; 803 NW2d
217 (2011). If a defendant intentionally relinquishes or abandons the right to testify, the right
will be deemed waived. See People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
We note at the outset that defendant’s affidavit is the only evidence he offers to support
his claim that defense counsel provided ineffective assistance by advising him not to testify. As
discussed earlier, however, our review is limited to the existing lower court record. See Lopez,
305 Mich App at 693; People v Watkins, 247 Mich App 14, 31; 634 NW2d 370 (2001) (refusing
to consider the defendant’s affidavit in support of an ineffective assistance of counsel claim
because it was not part of the lower court record), aff’d but criticized on other grounds by 468
Mich 233 (2003). At trial, the following exchange took place between defendant, defense
counsel, and the trial judge after the prosecution’s case-in-chief—and after the judge called a
brief recess for defense counsel to confer with defendant:
[Defense Counsel]: I have discussed with my client you know our defense
and our strategy in this case. We have talked about possible witnesses. I have
explained to him his right to testify and not to testify, and after discussing this my
client has decided that he wishes to exercise his right to remain silent and not
testify. I haven’t promised him anything, I haven’t guaranteed him anything, I
have not threatened him. And, also, that in discussing the way the case has gone
in we have decided not to put on any witnesses. Stand up.
* * *
The Court: And Mr. Chappel, do you understand that you have a
[c]onstitutional [r]ight in this case to testify, do you understand that?
[Defendant]: Yes.
The Court: And you, also, have a [c]onstitutional [r]ight to remain silent.
Do you understand that, sir?
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[Defendant]: Yes.
The Court: It’s my understanding from your attorney that you wish to
assert your [c]onstitutional [r]ight to remain silent and to give up your right to
testify in this case. Is that correct, sir?
[Defendant]: Yes. [Emphasis added.]
The trial court conducted further voir dire of defendant on this point, and defendant testified that
no one had forced him to waive his right to testify; no one had threatened him or promised him
anything; he was “knowingly, intelligently, voluntarily, understandably, and accurately” waiving
his right to testify; and waiving the right was his own choice. Thus, rather than supporting
defendant’s claim that defense counsel persuaded him not to testify or prevented him from doing
so, the record exhaustively establishes that defendant was apprised of his right to testify and
voluntarily waived that right. See Carter, 462 Mich at 215. Accordingly, defendant fails to
establish the factual predicate for his claim and cannot demonstrate that defense counsel’s
performance failed to meet an objectively reasonable standard. See Walker, 497 Mich at 895;
Hoag, 460 Mich at 6.
Moreover, we simply cannot determine what effect, if any, defendant’s testimony may
have had on the trial because our review is limited to the lower court record and because
defendant did not testify. See Lopez, 305 Mich App at 693. Defendant therefore fails to
establish a reasonable probability that the outcome of the case would have been different had he
testified, and thus, cannot demonstrate that defense counsel’s performance at trial prejudiced
him. See Gaines, 306 Mich App at 300.
Affirmed.
/s/ Michael F. Gadola
/s/ Kathleen Jansen
/s/ Jane M. Beckering
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