People of Michigan v. Jack Leroy Wine Jr ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 24, 2015
Plaintiff-Appellee,
v No. 318822
Calhoun Circuit Court
JACK LEROY WINE, JR., LC No. 2013-001828-FC
Defendant-Appellant.
Before: RIORDAN, P.J., and MURPHY and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of armed robbery, MCL 750.529.
Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 25 to 50 years’
imprisonment. We affirm.
I. BACKGROUND
The victim, Penelope White, was at home with several people in the middle of the day
when the robbery occurred. She heard a disturbance, and then the door to the room she was in
crashed opened. Defendant’s son, Jack Wine III (Jack III), came into the room and hit her in the
head with a fence post that had cleated steel. He hit her so hard that she had a scar on her head
months later at the time of trial, and he broke her arm. He continually beat her until she stayed
down. Jack III then dragged Penelope to the basement by her hair, and continued to hit Penelope
in the face with the pole. He also attacked her daughter, Stephanie. His attack on her was so
vicious that Stephanie had a sizable scar on her arm at the time of trial.
Defendant was in the basement, and Penelope surmised that defendant did not want her to
get hurt. Jack III was holding a gun. Defendant eventually asked Penelope, “[W]hy did you rip
me off?” When she claimed that it was not her but Brittany and another individual, defendant
replied, “This is over.” Penelope offered them her purse, defendant asked her where it was, and
Jack III retrieved it. The men eventually left, and Penelope and Stephanie went to the hospital
for their injuries. Penelope’s arm was injured so badly that she required surgery, and Stephanie
required several stitches.
-1-
Defendant was convicted of armed robbery and was sentenced to 25 to 50 years’
imprisonment.1 He now appeals on several grounds.
II. NEWLY DISCOVERED EVIDENCE
A. STANDARD OF REVIEW
“[A] motion for a new trial on the basis of newly discovered evidence must first be
brought in the trial court in accordance with the Michigan Court Rules.” People v Darden, 230
Mich. App. 597, 605-606; 585 NW2d 27 (1998). Because defendant did not file a motion for a
new trial below, this issue is unpreserved. Id. We review unpreserved claims for plain error
affecting substantial rights. People v Cox, 268 Mich. App. 440, 450; 709 NW2d 152 (2005).
B. ANALYSIS
On appeal, defendant first provides a handwritten, notarized statement from a person
named Colby M. Mann. Defendant contends that this constitutes newly discovered evidence that
warrants a new trial. We disagree.
Mann asserts the following:
I am writing this of my own accord and am not under no threat [sic] of
injury and have not been pursuaded [sic] by anybody in any way to write this
statement.
During a conversation with Penelope White and Stephanie White they
brought up an incident that happened at their house involving Jack Wine III. The
stated [sic] that Mr. Wine was going to prison due to their testemony [sic] that he
stole a purse from their house. During the conversation they told me that he never
really stole the purse or had ever came with a weapond [sic] even. They stated
that they were telling the police that story so Mr. Wine would be charged with
armed robbery and so the charges would stick. They stated that they wanted
custody of a child that Jacks father [sic] had.[2] I know Stephanie and Penelope
through a mutual friend and regular run [sic] into them in my neiborhood [sic].
I Colby Michael Mann swear that the information contained in this
affidavit is true and will testify to it in the court of law.
1
According to the Michigan Department of Corrections website, Jack III pleaded nolo
contendere to armed robbery and is serving a 14-year sentence.
2
Penelope has two daughters: Stephanie and Brittany. Defendant’s wife has a son named Kyle.
Brittany and Kyle share a child together.
-2-
“Historically, Michigan courts have been reluctant to grant new trials on the basis of
newly discovered evidence.” People v Grissom, 492 Mich. 296, 312; 821 NW2d 50 (2012). See
also People v Rao, 491 Mich. 271, 279-280; 815 NW2d 105 (2012) (“motions for a new trial on
the ground of newly-discovered evidence are looked upon with disfavor.”). Parties are
encouraged “to use care, diligence, and vigilance in securing and presenting evidence.”
Grissom, 492 Mich. at 312 (quotation marks and citation omitted). “[I]n fairness to both parties
and the overall justice system, the law requires that parties secure evidence and prepare for trial
with the full understanding that, absent unusual circumstances, the trial will be the one and only
opportunity to present their case.” Rao, 491 Mich. at 280.
In order to demonstrate that a new trial is warranted based on newly discovered evidence,
a defendant must show the following:
(1) the evidence itself, not merely its materiality, was newly discovered;
(2) the newly discovered evidence was not cumulative; (3) the party could not,
using reasonable diligence, have discovered and produced the evidence at trial;
and (4) the new evidence makes a different result probable on retrial. [Grissom,
492 Mich. at 313 (quotation marks and citation omitted).]
While impeachment evidence may constitute newly discovered evidence, our Supreme
Court has warned that “newly discovered impeachment evidence ordinarily will not justify the
grant of a new trial.” Id. at 317-318. The Court has cautioned that “[i]t will be the rare case in
which (1) the necessary exculpatory connection exists between the heart of the witness’s
testimony at trial and the new impeachment evidence and (2) a different result is probable on
retrial.” Id. at 318.
Defendant has failed to demonstrate that the evidence he provides on appeal was newly
discovered. Id. at 313. It is unclear from defendant’s motion to remand, his brief on appeal, or
Mann’s letter how defendant came to know about Mann. Defendant makes no mention of when
he discovered Mann’s alleged version of events. Additionally, this is relevant for the third prong
of the inquiry, namely, that defendant could not have discovered this evidence using reasonable
diligence. Defendant has provided no evidence, nor explanation, regarding when he discovered
this evidence from Mann or whether he was acquainted with Mann before trial. There is nothing
to suggest that defendant, when using reasonable diligence, could not have produced this
evidence at trial. As the Supreme Court has recognized, “[t]he defendant carries the burden of
satisfying all four parts” of the test articulate supra. Rao, 491 Mich. at 279.
Moreover, a different result is not probable on retrial. Grissom, 492 Mich. at 313.
Although not entirely clear, Mann’s statement seems to refer to Jack III, defendant’s son, not
defendant. According to Mann’s convoluted version of events, Penelope and Stephanie
concocted this story so that Jack III would go to jail, which would somehow result in obtaining
custody “of a child that Jacks father [sic] had.” Yet, Mann never claims that Penelope and
Stephanie planned to frame defendant for the robbery. Thus, the relevance of Mann’s statement
-3-
is limited. Further, Mann did not identify the child at issue. It would seem to be Kyle’s son.3
However, it is not clear how sending Jack III to jail would matter regarding custody, as Jack III
is not the father of the child nor does he have custody. Defendant’s wife—not defendant—has
custody of this child, which she obtained before marrying defendant. Nor does Mann’s
account—that this crime was entirely fabricated—account for the fact that Penelope and
Stephanie were hospitalized for their injuries. The parties stipulated the admission of medical
records. In light of the foregoing, we cannot say that a different result is probable on retrial.
Grissom, 492 Mich. at 313.
Defendant is not entitled to relief based on his claim of newly discovered evidence.
III. MISSING WITNESS INSTRUCTION
A. STANDARD OF REVIEW
Defendant next contends that the trial court erred in failing to give the missing witness
instruction regarding the absence of Colin Davis.4 “This Court reviews for an abuse of discretion
a trial court’s determination whether the missing witness instruction is appropriate.” People v
Steele, 283 Mich. App. 472, 485; 769 NW2d 256 (2009). “An abuse of discretion occurs when
the court chooses an outcome that falls outside the range of reasonable and principled
outcomes.” People v Unger, 278 Mich. App. 210, 217; 749 NW2d 272 (2008). “Reversal for
failure to provide a jury instruction is unwarranted unless it appears that it is more probable than
not that the error was outcome determinative.” People v McKinney, 258 Mich. App. 157, 163;
670 NW2d 254 (2003).
B. ANALYSIS
“A prosecutor who fails to produce an endorsed witness may show that the witness could
not be produced despite the exercise of due diligence.” People v Eccles, 260 Mich. App. 379,
388; 677 NW2d 76 (2004). “The missing witness instruction may be given if a prosecutor fails
to secure the presence at trial of a listed witness who has not been properly excused.” Steele, 283
Mich. App. at 485 (quotation marks and citation omitted). Pursuant to MCL 767.40a(4): “The
prosecuting attorney may add or delete from the list of witnesses he or she intends to call at trial
at any time upon leave of the court and for good cause shown or by stipulation of the parties.”
As our Supreme Court has explained, the decision whether to read the missing witness
instruction “will depend on the specific facts of that case.” People v Perez, 469 Mich. 415, 421;
670 NW2d 655 (2003).
3
Kyle is the son of defendant’s wife.
4
There are different spellings of this individual’s name throughout the record. To avoid
confusion, we refer to the spelling in accordance with the prosecution’s witness list.
-4-
In the instant case, Colin Davis was a listed witness who did not appear at trial. While
defendant requested a missing witness instruction, the trial court denied the request, explaining
the following:
Counsel described to me in chambers that the knowledge of that witness or
the testimony of that witness, had he appeared, would have been that he had left
before the offense and had not returned until after it. And given that, it—it’s
apparent to this Court, at least, that the fact that he didn’t testify is not of
sufficient prejudice to the defendant to justify the giving of the missing witness
instructions since his testimony would not have included any observations about
the offense or the participants there in.
Defendant first contends that because the prosecution failed to produce the witness, the
trial court was required to give the missing witness instruction. However, our caselaw makes it
clear that the decision whether to give the missing witness instruction is within the court’s
discretion. Perez, 469 Mich. at 421. It is a decision to be made on a case-by-case basis. Id.
Whether the witness would have offered helpful testimony is a relevant consideration, as
discussed infra. Id. at 417-418, 420, 421.
Defendant also contends that the period of time before the offense was critical, and this
witness would have illuminated what occurred during that time period. That assertion is mere
speculation. There is nothing to suggest that something relevant or critical occurred before the
crime. Moreover, the victims provided a detailed account of defendant’s crime, as discussed
supra. Defendant presented no witnesses to rebut the victims’ version of events. As this Court
has recognized, reversal for failure to provide a jury instruction is warranted only when it is more
probable than not that the error was outcome determinative. McKinney, 258 Mich. App. at 163.
In light of the relatively limited insight this missing witness could have provided, and the
victim’s convincing testimony, we cannot say that any error was outcome determinative. Id. at
163.
IV. OFFENSE VARIABLE 4
A. STANDARD OF REVIEW
Defendant also challenges the trial court’s scoring of Offense Variable (OV) 4 at 10
points. “Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich. 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id.
B. ANALYSIS
Pursuant to MCL 777.34(1)(a), 10 points for OV 4 is warranted when “[s]erious
psychological injury requiring professional treatment occurred to a victim.” The statute also
instructs to “[s]core 10 points if the serious psychological injury may require professional
-5-
treatment” although “the fact that treatment has not been sought is not conclusive.” MCL
777.34(2).
When a victim testifies that she was fearful during the crime, that is sufficient evidence to
support a score of 10 points under OV 4. People v Apgar, 264 Mich. App. 321, 329; 690 NW2d
312 (2004). See also People v Davenport (After Remand), 286 Mich. App. 191, 200; 779 NW2d
257 (2009) (“the victim’s expression of fearfulness is enough to satisfy the statute.”). Here,
Penelope testified that she surrendered her purse to save her life and that of her family. The
presentence investigation report indicates that the victim reported to the police that she feared
she was going to be killed during the incident. Given the fact that the victim feared for her life,
and for the life of her loved ones, we find no error in the trial court’s assessment of 10 points.
Apgar, 264 Mich. App. at 200.
V. JURISDICTION
A. STANDARD OF REVIEW
Next, in his Standard 4 brief, defendant contends that the trial court proceeded to trial
without proper jurisdiction. We review de novo the question of jurisdiction. People v Glass, 288
Mich. App. 399, 400; 794 NW2d 49 (2010).
B. ANALYSIS
Defendant first contends that the felony complaint and warrant were defective because
they were initiated by an assistant prosecutor rather than the prosecutor. Contrary to defendant’s
suggestion, an assistant prosecutor has the authority to sign the felony complaint and warrant.
MCL 49.42 provides, in relevant part, that an “assistant prosecuting attorney shall . . . perform
any and all duties pertaining to the office of prosecuting attorney at such time or times as he may
be required so to do by the prosecuting attorney and during the absence or disability from any
cause of the prosecuting attorney[.]” There was no error in the assistant prosecutor’s actions.
Second, defendant contends that the felony complaint was defective because it did not
contain sufficient information to support an independent judgment that probable cause existed
for the felony warrant to be issued. Yet, the complaint and warrant alleged that during the course
of committing a larceny of a purse and contents, defendant placed Penelope in fear and possessed
a bat and/or stick. These factual allegations were sufficient. MCR 6.101(A); MCR 6.102(C).
Moreover, even if we agree that the felony complaint and warrant were defective, this would not
justify setting aside defendant’s conviction for lack of jurisdiction. “[A]n illegal arrest or arrest
warrant issued on defective procedure will not divest a court of jurisdiction when the court has
jurisdiction over the charged offense and the defendant appears before the court.” Porter v
Porter, 285 Mich. App. 450, 462; 776 NW2d 377 (2009); see also People v Rice, 192 Mich. App.
240, 244; 481 NW2d 10 (1991) (“[t]he invalidity of an arrest does not deprive a court of
jurisdiction to try a defendant.”). Thus, defendant has failed to establish that any defect in the
felony complaint or warrant deprived the trial court of jurisdiction. MCR 6.101(A); MCR
6.102(C).
-6-
Third, defendant contends that there was no return from district court in the record. MCR
6.110(G). “A circuit court does not acquire jurisdiction until a return is filed by the district court,
and jurisdiction is limited to the offense specified in the return.” People v Flowers, 191 Mich
App 169, 172; 477 NW2d 473 (1991). The record indicates that the preliminary examination
occurred on June 6, 2013. As defendant acknowledges, there is a “Bind Over/Transfer After
Preliminary Examination Felony” form in the record, which is signed by the district court judge.
The document states, “Examination was held and it was found that probable cause exists to
believe both that an offense not cognizable by the district court has been committed and that the
defendant committed the offense.” The form indicates that defendant is bound over to circuit
court on the charges in the complaint, minus the counts that had been dismissed. Thus, the
circuit court record contains the felony complaint, the felony warrant, the form binding
defendant over to the circuit court after the preliminary examination, and the felony information.
There was no error evident in the procedure binding the case over to the circuit court.
Fourth, defendant posits that the trial court did not have jurisdiction because the record
does not indicate that he was arraigned on the information. However, the register of actions
indicates that the arraignment occurred on May 14, 2013. Further, even if he was not arraigned
properly, MCR 6.113(A) provides that “[u]nless the defendant demonstrates actual prejudice,
failure to hold the arraignment on the scheduled date is to be deemed harmless error.”
Accordingly, “[a] showing of prejudice is required to merit relief for the failure to hold a circuit
court arraignment.” People v Nix, 301 Mich. App. 195, 208; 836 NW2d 224 (2013). Here,
defendant has failed to show that any failure to arraign him on the information was prejudicial.
Defendant does not allege that he was deprived of the felony information or that he was unaware
of the charges against him. Defendant is not entitled to relief.
Lastly, defendant argues that the felony information was insufficient because it did not
describe the charged offense in detail. However, the felony information provided the date of the
offenses, a brief description of the nature of defendant’s crimes, and the maximum penalty for
each offense. This satisfied the requirements of MCR 6.112(D), which only requires the
information to set forth “the substance of the accusation against the defendant and the name,
statutory citation, and penalty of the offense allegedly committed.” Defendant is not entitled to
relief.
VI. PRELIMINARY JURY INSTRUCTIONS
A. STANDARD OF REVIEW
Next, in his Standard 4 brief, defendant asserts that the trial court erred in failing to give
complete preliminary jury instructions. We review unpreserved claims of instructional error for
plain error affecting substantial rights. People v Aldrich, 246 Mich. App. 101, 124-125; 631
NW2d 67 (2001). An error must have occurred, the error must be plain (i.e., clear or obvious),
and the plain error affected substantial rights. People v Carines, 460 Mich. 750, 763; 597 NW2d
130 (1999). An error affects substantial rights when it prejudiced the defendant, meaning it
affected the outcome of the proceedings. Id. “[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’
-7-
independent of the defendant’s innocence.’” Id. at 763-764, quoting United States v Olano, 507
U.S. 725, 736-737; 113 S. Ct. 1770; 123 L. Ed. 2d 508 (1993).
B. ANALYSIS
Defendant contends that the court did not comply with its duty to give complete
preliminary instructions as it did not read the statutes for the charged offenses. The relevant
court rule, MCR 2.513(A), provides:
After the jury is sworn and before evidence is taken, the court shall
provide the jury with pretrial instructions reasonably likely to assist in its
consideration of the case. Such instructions, at a minimum, shall communicate the
duties of the jury, trial procedure, and the law applicable to the case as are
reasonably necessary to enable the jury to understand the proceedings and the
evidence. The jury also shall be instructed about the elements of all civil claims or
all charged offenses, as well as the legal presumptions and burdens of proof. The
court shall provide each juror with a copy of such instructions. . . .
Before voir dire, the trial court informed the jury that defendant was charged with armed
robbery and first-degree home invasion. The court also informed the jury about the presumption
of innocence, the burden of proof, and the definition of “reasonable doubt.” It detailed the duties
of the jury, such as attending all sessions.
After the jury took its oath, the court gave additional, lengthy instructions. The court
informed the jury that the oath it took endures until it reaches a verdict. It also gave the jury a
preview of what a criminal trial entails, again mentioned the burden of proof, and told the jury
that it would receive final jury instructions. The court instructed the jury that it must accept the
law as the court provides and then apply the facts to the law. The court defined “evidence,” and
informed the jury that it may accord evidence different weight. However, the court encouraged
the jurors to keep an open mind, and cautioned that sentencing is not an issue for the jury to
decide.
Now on appeal, defendant contends that the failure to comply entirely with MCR
2.513(A) requires reversal. However, defendant never objected below to the preliminary jury
instructions, or otherwise indicated that he found them to be deficient. While the trial court did
not list the elements of the crimes during the preliminary phase, it clearly instructed the jury on
the elements of the crimes during final jury instructions. Defendant raises no challenge to the
final jury instructions.5 Because the jury was properly instructed on the elements of the crime
before it began deliberations, defendant has not shown that any error affected his substantial
rights. “No structural error occurred because defendant was not deprived of a basic protection.”
People v Allen, 466 Mich. 86, 92; 643 NW2d 227 (2002). See also People v Kowalski, 489 Mich.
5
The jury also received a written document listing the elements of the crimes.
-8-
488, 505 n 30; 803 NW2d 200 (2011). “The trial court’s instructions, when viewed as a whole,
adequately protected defendant’s rights.” Carines, 460 Mich. at 771.
VII. VOIR DIRE
Next, in his Standard 4 brief, defendant posits that he was denied a fair and impartial jury
because one of the jurors during voir dire indicated that he was biased against defendant.
However, at the close of jury selection, defense counsel said that he was satisfied with the jury.
The oath was then given, and the trial began. “When defense counsel clearly expresses
satisfaction with a trial court’s decision, counsel’s action will be deemed to constitute a waiver.”
Kowalski, 489 Mich. at 503.
Moreover, even if we were to review this issue, defendant is not entitled to relief. One of
the prospective jurors indicated that his son’s home had been broken into, although his son was
not present at the time. While the juror initially indicated that he would let that situation sway
him, the following colloquy ensued:
Q. What about that would influence you here, in an unrelated case?
A. Be that he was broke into and he lost - - loss of work and loss of
property.
Q. Sure. And that no doubt is absolutely true, but do you understand
that’s a separate incident not involving this case and that you’d have to set that
aside in this case?
A. I understand that.
Q. And would you?
A. Yes, I would.
Q. Alright. You’d be able to then?
A. Yes.
Defendant contends that the trial court erred in failing to sua sponte excuse the juror.
However, “[a] juror who expresses an opinion referring to some circumstance of the case which
is not positive in character, but swears he can render an impartial verdict, may not be challenged
for cause.” People v Roupe, 150 Mich. App. 469, 474; 389 NW2d 449 (1986). See also MCL
768.10; see People v Jendrzejewski, 455 Mich. 495, 518; 566 NW2d 530 (1997) (“prior
impressions or opinions, not positive in character, do not mandate disqualification.”). The juror
ultimately communicated that he would be able to set aside any prior opinions. Thus, defendant
has failed to demonstrate that this juror should have been removed, or that the court should have
done so sua sponte.
VIII. PROSECUTORIAL MISCONDUCT
-9-
A. STANDARD OF REVIEW
Next in his Standard 4 brief, defendant contends that the trial was rife with instances of
prosecutorial misconduct. We review unpreserved claims for plain error affecting substantial
rights. Aldrich, 246 Mich. App. at 124-125.
B. ANALYSIS
Defendant asserts several inconsistencies between the police reports, preliminary
examination testimony, and evidence at trial. He characterizes this as an issue of prosecutorial
misconduct. However, he has failed to provide any authority for the proposition that he is
entitled to a remand because of alleged inconsistencies in the evidence. “Defendant may not
leave it to this Court to search for a factual basis to sustain or reject his position.” People v Petri,
279 Mich. App. 407, 413; 760 NW2d 882 (2008) (quotation marks and citation omitted).
Moreover, even if defendant asserted this argument in the context of the sufficiency of the
evidence, we have consistently held that conflicts of the evidence are resolved in favor of the
prosecution. People v Henderson, 306 Mich. App. 1, 9; 854 NW2d 234 (2014). Defendant also
failed to explain how this is an issue of prosecutorial misconduct. Petri, 279 Mich. App. at 413.
There is no evidence in the record that the prosecution intentionally or knowingly introduced
false evidence. See People v Herndon, 246 Mich. App. 371, 417; 633 NW2d 376 (2001).
Therefore, defendant is not entitled to relief.6
IX. INEFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARD OF REVIEW
Next, defendant contends in his Standard 4 brief that he was denied the effective
assistance of counsel. Whether a defendant received effective assistance of counsel is a mixed
question of fact and law, as a “trial court must first find the facts and then decide whether those
facts constitute a violation of the defendant’s constitutional right to effective assistance of
counsel.” People v Matuszak, 263 Mich. App. 42, 48; 687 NW2d 342 (2004). When reviewing a
claim of ineffective assistance of counsel that has not been preserved for appellate review, a
reviewing court is limited to mistakes apparent on the record. People v Davis, 250 Mich. App.
357, 368; 649 NW2d 94 (2002).
B. ANALYSIS
6
To the extent that defendant claims he was denied due process because the prosecution
knowingly allowed the case to proceed without proper jurisdiction, that argument is meritless as
there is no jurisdictional defect warranting reversal. Likewise, the jury was properly instructed
on the elements of the crimes before reaching its verdict.
-10-
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden to
prove otherwise.” People v Mack, 265 Mich. App. 122, 129; 695 NW2d 342 (2005). To establish
a claim for ineffective assistance of counsel, a defendant first must establish that “counsel’s
representation fell below an objective standard of reasonableness.” People v Vaughn, 491 Mich.
642, 669; 821 NW2d 288 (2012) (quotation marks and citation omitted); see also Strickland v
Washington, 466 U.S. 668, 687; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). Second, the defendant
must show that trial counsel’s deficient performance prejudiced his defense, meaning “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Vaughn, 491 Mich. at 669 (quotation marks and citation omitted);
see also Strickland, 466 U.S. at 687.
Defendant first contends that his trial counsel rendered ineffective assistance of counsel
in failing to remedy the alleged errors he identifies in his Standard 4 brief. Because we have
found no merit to any of these claims of error, defendant has not demonstrated that he was
denied the effective assistance of counsel. “Counsel is not ineffective for failing to advocate a
meritless position.” Mack, 265 Mich. App. at 130 (quotation marks and citation omitted).
Defendant also contends that his counsel failed to adequately investigate the case and
present essential witnesses, which resulted in the denial of his constitutional right to present a
defense. Defendant requests that we remand this case for a hearing pursuant to People v Ginther,
390 Mich. 436, 444; 212 NW2d 922 (1973). Defendant presents several letters in support of his
claim. These handwritten letters are from various individuals claiming to have relevant
knowledge regarding the crime. The letters are signed, and some of them are dated, but all but
two of them are not notarized nor otherwise authenticated. These “unnotarized statement[s]
fail[] to meet the procedural requirements of MCR 7.211(C)(1). That is, not being notarized or
otherwise having been taken before a person having authority to administer an oath or
affirmation,” these documents carry “no more weight than a letter outlining defendant’s
complaints about his trial counsel. And as such, defendant failed to make a sufficient offer of
proof of the evidence to be established at a hearing.” People v Ybarra, 493 Mich. 862; 820
NW2d 908 (2012) (ZAHRA, J. concurring). See also Sherry v E Suburban Football League, 292
Mich. App. 23, 31; 807 NW2d 859 (2011).
Further, while the statement from Mary Reyes is notarized, she was not present at the
victim’s house nor did she have any first-hand knowledge of what occurred there. Rather, she
only related that she met with defendant and his son after the incident, and that defendant said
that someone had come up from the basement and shot at him. No other details were provided.
In fact, nothing in Reyes’ account necessarily contradicts the victims’ testimony, as Reyes
provides no detail regarding when the shooting occurred or if the victims were present. See
People v Dixon, 263 Mich. App. 393, 398; 688 NW2d 308 (2004) (“the failure to call witnesses
only constitutes ineffective assistance of counsel if it deprives the defendant of a substantial
defense.”). Moreover, defendant attached a letter from his defense counsel. Counsel informed
defendant that he did, indeed, contact Reyes but determined that she would not provide
testimony that would further the defense. See Dixon, 263 Mich. App. at 398 (“decisions regarding
what evidence to present and whether to call or question witnesses are presumed to be matters of
-11-
trial strategy, which we will not second-guess with the benefit of hindsight.” (Quotation marks
and citation omitted)).7
The other notarized letter was from Mann. As discussed in the context of newly
discovered evidence, there are severe deficiencies in Mann’s story that make it improbable that
the outcome of the proceedings would have been different. Vaughn, 491 Mich. at 669. Mann
only references the victims’ plan to set up defendant’s son, Jack III, with no mention of setting
up defendant. Further, the implausibility of the plan—setting up Jack III in an attempt to affect
the custody of a child that neither defendant nor Jack III has custody of—renders it unlikely that
a different result is reasonably probable. Also, Mann’s account—that the crime was a complete
fabrication—fails to account for the severe injuries the victims suffered.
Therefore, even considering Mann’s letter, we cannot say that any error in failing to
produce him at trial altered the outcome. Vaughn, 491 Mich. at 669; Dixon, 263 Mich. App. at
398. In light of the foregoing, we do not find that defendant was denied the effective assistance
of counsel or that a remand for a Ginther hearing is warranted.8
X. CONCLUSION
Defendant is not entitled to relief based on his claims of newly discovered evidence,
instructional error, the scoring of OV 4, jurisdictional defects, juror bias, prosecutorial
misconduct, or ineffective assistance of counsel. Nor do we find that a remand for resentencing,
a new trial, or an evidentiary hearing is warranted. We affirm.
/s/ Michael J. Riordan
/s/ William B. Murphy
/s/ Mark T. Boonstra
7
Regarding the other individuals defendant claims were important witnesses—Holly Wine,
Colin Davis, Jennifer Miner, Phil Hubbard, Matthew McClurg, Delores Ahrndt, and Paula
Mannon—defense counsel stated that he investigated these witnesses and ascertained that they
would not provide information helpful to the defense.
8
Defendant contends that his claims of ineffective assistance of counsel fall within the purview
of United States v Cronic, 466 U.S. 648; 104 S. Ct. 2039; 80 L. Ed. 2d 657 (1984). However, as the
Michigan Supreme Court recognized in People v Frazier, 478 Mich. 231, 243; 733 NW2d 713
(2007), the standard articulated in Cronic is for three “rare situations in which the attorney’s
performance is so deficient that prejudice is presumed.” None of the allegations defendant
makes in his Standard 4 brief satisfy the standards set forth in Cronic.
-12-