People of Michigan v. Marcus Carter Perkins ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 11, 2017
Plaintiff-Appellee,
v No. 329444
Wayne Circuit Court
AARON MATTHEWS, LC No. 15-003077-01-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 331827
Wayne Circuit Court
MARCUS CARTER PERKINS, LC No. 15-003077-02-FC
Defendant-Appellant.
Before: TALBOT, C.J., and K. F. KELLY and BORRELLO, JJ.
PER CURIAM.
Defendants were tried jointly, before a single jury. Defendant Matthews appeals as of
right his jury trial convictions of second-degree murder, MCL 750.317, and obstruction of
justice, MCL 750.505a. He was sentenced to 40 to 60 years’ imprisonment for his second-
degree murder conviction and 2 to 5 years’ imprisonment for the obstruction of justice
conviction. Defendant Perkins appeals as of right his jury trial convictions of first-degree
murder, MCL 750.316(1)(a), 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 Perkins was sentenced to life-without-parole for his
first-degree murder conviction, 29 to 60 months’ imprisonment for his felon-in-possession
conviction, and two years’ imprisonment for his felony-firearm conviction. For the reasons set
forth in this opinion, we affirm the convictions and sentences of defendants.
I. BACKGROUND
-1-
Defendants were tried jointly for the events arising out of the death of Damon Roberts on
February 22, 2015 in Detroit, Michigan. On that date, Kazak Perdue, Chris Perdue, and Roberts
were hanging out at Chris’s house when at some point, Kazak decided that he wanted to leave
the house to go get “drinks” at a store just a few blocks away. Shortly after Kazak left the house,
he heard Roberts say his name so Kazak turned around and saw Roberts walking about a block
behind him. Despite Roberts calling his name, Kazak kept walking south on Queen Street
toward Houston Whittier Street because he was trying to get to the store before it closed at 2:00
a.m.
Kazak noticed a silver SUV drive past him. Kazak explained that he noticed the SUV, in
particular, because it had a headlight out. Shortly thereafter, he heard a “pop sound.” Kazak
turned around and saw who he believed was Roberts falling to the ground. Unsure of what
happened and without a way to dial 911, Kazak continued walking toward the store so he could
use a phone to dial 911. The store was already closed by the time Kazak got there, but he went
to a nearby gas station off of Hayes Street and dialed 911.
Detroit Police Officers were dispatched to the intersection of Queen Street and Mayfield
Street for “one shot fired.” When they arrived, they observed a person, later identified as
Roberts, lying in the street in a pool of blood. Roberts had suffered a shotgun injury to his head
and would later die from the injury. A medical examiner’s report concluded that the fatal shot
was fired at close range.
At defendants’ trial, the prosecution presented Lamont Parker as an eyewitness to the
shooting. Parker testified that in the early hours of February 22, 2015, he was walking on Hayes
Street toward Courville Street when a grey GMC SUV pulled up next to him. Parker recognized
the vehicle as Aaron Matthews’s vehicle because it had a “busted” taillight. When the vehicle
stopped, Matthews rolled down the passenger side window and asked Parker if he wanted a ride.
Parker replied that he would like a ride to his friend’s house. According to Parker, Matthews
was driving and Perkins was seated in the passenger’s seat.
Parker told Matthews that he wanted to be dropped off at his friend’s house near Kelly
Road and Courville Street. However, when the SUV reached a split in the road where Matthews
would need to turn in order to drop Parker off, Matthews continued driving on Hayes Street.
Eventually, Matthews turned onto Queen Street where Parker noticed a man walking down the
street with some bottles. Shortly thereafter, Matthews stopped the vehicle abruptly, which
caused Parker’s pack of cigarettes to fall from his lap onto the floor of the vehicle. Parker bent
down to retrieve them and, when he sat up, he noticed Perkins outside of the vehicle.
According to his testimony, Parker saw Perkins standing approximately an arm’s length
away from Roberts. Perkins was holding a gun pointed at Roberts and Roberts had both hands
held up in the air. Shortly thereafter, Parker saw Roberts drop to the ground. Parker did not hear
a gunshot because the radio was turned up. At that point, Parker asked Matthews: “what the
f*** is going on?” Matthews responded, “Chill out don’t panic[;] I’m fen [sic] to drop you off
and don’t say nothing or we’ll be back.” Perkins returned to the vehicle and got in without
saying anything and eventually dropped Parker off near his friend’s house.
Defendants were convicted and sentenced as indicated above. This appeal then ensued.
-2-
I. DOCKET NO. 329444
On appeal, Aaron Matthews argues that he is entitled to a new trial because the
prosecution failed to present sufficient evidence at trial to prove beyond a reasonable doubt his
conviction of second-degree murder under an aiding and abetting theory.
A defendant’s challenge to the sufficiency of the evidence is reviewed de novo on appeal.
People v Meissner, 294 Mich. App. 438, 452; 812 NW2d 37 (2011). When determining whether
sufficient evidence was presented in a jury trial to support a defendant’s conviction, we must
review the evidence in a light most favorable to the prosecution and determine whether a rational
trier of fact could have found that the essential elements of the crime were proven beyond a
reasonable doubt. People v Gaines, 306 Mich. App. 289, 296; 856 NW2d 222 (2014).
“Circumstantial evidence and reasonable inferences arising therefrom may be used to prove the
elements of a crime.” People v Brantley, 296 Mich. App. 546, 550; 823 NW2d 290 (2012). “All
conflicts in the evidence must be resolved in favor of the prosecution.” People v Kanaan, 278
Mich. App. 594, 619; 751 NW2d 57 (2008).
The elements of second-degree murder are “(1) a death, (2) the death was caused by an
act of the defendant, (3) the defendant acted with malice, and (4) the defendant did not have
lawful justification or excuse for causing the death.” People v Smith, 478 Mich. 64, 70; 731
NW2d 411 (2007). “Malice is defined as the intent to kill, the intent to cause great bodily harm,
or the intent to do an act in wanton and willful disregard of the likelihood that the natural
tendency of such behavior is to cause death or great bodily harm.” People v Bergman, 312 Mich
App 471, 487; 879 NW2d 278 (2015).
At trial, the prosecutor advanced the theory that Aaron Matthews was guilty of second-
degree murder as an aider or abettor. A person who aids or abets the commission of a crime may
be convicted and punished as if he directly committed the offense. MCL 767.39. “To support a
finding that a defendant aided and abetted a crime, the prosecution must show that (1) the crime
charged was committed by the defendant or some other person, (2) the defendant performed acts
or gave encouragement that assisted the commission of the crime, and (3) the defendant [either]
intended the commission of the crime or had knowledge that the principal intended its
commission at the time he gave aid and encouragement[,]” People v Izarraras-Placante, 246
Mich. App. 490, 495-496; 633 NW2d 18 (2001) (citation omitted), “or, alternatively, that the
charged offense was a natural and probable consequence of the commission of the intended
offense,” People v Robinson, 475 Mich. 1, 15; 715 NW2d 44 (2006). “Aiding and abetting”
describes all forms of assistance rendered to the perpetrator of a crime and comprehends all
words or deeds that might support, encourage, or incite the commission of a crime. People v
Carines, 460 Mich. 750, 757; 597 NW2d 130 (1999); People v Rockwell, 188 Mich. App. 405,
411-412; 470 NW2d 673 (1991). “The quantum of aid or advice is immaterial as long as it had
the effect of inducing the crime.” People v Lawton, 196 Mich. App. 341, 352; 492 NW2d 810
(1992). An aider or abettor’s state of mind may be inferred from all the facts and circumstances,
including a close association between the defendant and the principal, the defendant’s
participation in the planning or execution of the crime, and evidence of flight after the crime.
Carines, 460 Mich. at 757; People v Bennett, 290 Mich. App. 465, 474; 802 NW2d 627 (2010).
-3-
Viewed in a light most favorable to the prosecution, the evidence was sufficient to show,
first, that co-defendant Perkins shot Damon Roberts in the head, causing Roberts’ death.
Second, there was sufficient evidence presented that Matthews assisted his co-defendant Perkins’
commission of the offense by (1) driving his SUV up to and abruptly stopping where Roberts
was standing, (2) keeping the vehicle next to Roberts as Perkins exited the vehicle with a
weapon, (3) waiting for Perkins to shoot Roberts in the head and return to the vehicle, (4)
warning Parker to keep silent about the incident, (5) driving Perkins from the scene of the
murder. Third, the evidence also was sufficient to show that Matthews knew and intended for
Perkins to act with malice against Roberts. Parker testified that he did not hear either defendant
speak to one another after he got inside the vehicle. Despite the silence and Parker clearly
stating where he wanted to be dropped off, Matthews continued driving until Matthews’ SUV
reached Roberts. Although Matthews did not hold the firearm or pull the trigger of the firearm
that killed Roberts, his actions enabled Perkins to kill Roberts. Additionally, Matthews’s act of
passing at least one person before stopping near Roberts demonstrates that this was not a random
act; rather, a plan discussed and decided in advance of the killing. Moreover, Matthews’s
statement, “Chill out don’t panic[;] I’m fen [sic] to drop you off and don’t say nothing or we’ll
be back,” was evidence that he was acting in concert with Perkins at the time of the shooting.
Based on this record evidence, it was reasonable for the jury to infer that Aaron Matthews
not only performed acts to assist in the commission of the crime, but also intended the
commission of the crime. Thus, the elements of the lesser-included offense, second-degree
murder, were met because the record evidence supports a finding beyond a reasonable doubt that
Matthews acted with the intent to kill Damon Roberts when Matthews stopped the SUV thereby
setting the stage for Perkins to shoot Roberts. See Smith, 478 Mich. at 70; Carines, 460 Mich. at
759. Accordingly, sufficient evidence existed to support defendant Matthews’s second-degree
murder conviction under an aiding and abetting theory and Matthews is not entitled to relief.
Izarraras-Placante, 246 Mich. App. at 495-496.
II. DOCKET NO. 331827
A. PROSECUTORIAL MISCONDUCT
On appeal, Marcus Perkins argues that the prosecutor committed misconduct when she
improperly commented and elicited information regarding his pretrial incarceration, and
appealed to the jurors’ sympathy by calling Perkins a “violent felon” and encouraged the jurors
to consider his in-court demeanor in making their credibility determination.
A defendant must “contemporaneously object and request a curative instruction” to
preserve an issue of prosecutorial misconduct for appellate review. People v Bennett, 290 Mich
App 465, 475; 802 NW2d 627 (2010). Defense counsel objected to the prosecutor’s closing
argument when she argued that the jurors were privy to Perkins’s in-court demeanor; therefore,
with respect to this alleged error, the issue is preserved for appellate review. However, because
defense counsel did not raise any other objections by timely and specifically objecting to the
prosecutor’s comments during trial, the remaining alleged errors are unpreserved for appellate
review. See id.
-4-
“Generally, a claim of prosecutorial misconduct is a constitutional issue that is reviewed
de novo, but a trial court’s factual findings are reviewed for clear error.” People v Brown, 279
Mich. App. 116, 134; 755 NW2d 664 (2008). However, we review unpreserved claims of
prosecutorial misconduct for plain error affecting substantial rights. Gaines, 306 Mich. App. at
308. In order to show plain error, defendant must establish “(1) that an error occurred, (2) that
the error was plain, and (3) that the plain error affected defendant’s substantial rights.” People v
Kowalski, 489 Mich. 488, 506; 803 NW2d 200 (2011). Generally, the “third prong requires a
showing of prejudice, which occurs when the error affected the outcome of the lower court
proceedings.” People v Putman, 309 Mich. App. 240, 243; 870 NW2d 593 (2015). Even if a
defendant satisfies all three requirements, appellate reversal is warranted only when the plain
error “resulted in the conviction of an actually innocent defendant or when an error seriously
affected the fairness, integrity or public reputation of judicial proceedings independent of the
defendant’s innocence.” Kowalski, 489 Mich. at 506 (quotation marks and citation omitted).
“The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial.” Brown, 279 Mich. App. at 134. The defendant bears the burden of establishing
that such an error occurred, which resulted in a miscarriage of justice. Id. “[A]llegations of
prosecutorial misconduct are considered on a case-by-case basis, and the reviewing court must
consider the prosecutor’s remarks in context.” Bennett, 290 Mich. App. at 475. More
specifically, we evaluate a prosecutor’s comments “in light of defense counsel’s arguments and
the relationship of these comments to the admitted evidence.” People v Seals, 285 Mich. App. 1,
22; 776 NW2d 314 (2009).
A prosecutor is generally given “great latitude regarding his or her arguments and
conduct at trial,” People v Fyda, 288 Mich. App. 446, 461; 793 NW2d 712 (2010), and is not
required to confine his or her argument “to the blandest possible terms,” People v Dobek, 274
Mich. App. 58, 66; 732 NW2d 546 (2007). Moreover, “[c]urative instructions are sufficient to
cure the prejudicial effect of most inappropriate prosecutorial statements.” Seals, 285 Mich. App.
at 22. “Jurors are presumed to follow their instructions, and instructions are presumed to cure
most errors.” People v Abraham, 256 Mich. App. 265, 279; 662 NW2d 836 (2003).
1. PRETRIAL INCARCERATION
A prosecutor’s references to a defendant’s incarceration are generally inadmissible.
People v Spencer, 130 Mich. App. 527, 537; 343 NW2d 607 (1983). Moreover, a prosecutor’s
intentional elicitation of testimony regarding a defendant’s previous incarceration constitutes
error. People v McGee, 90 Mich. App. 115, 116-117; 282 NW2d 250 (1979). However, “an
isolated or inadvertent reference to a defendant’s prior criminal activities will not result in
reversible prejudice.” People v Wallen, 47 Mich. App. 612, 613; 209 NW2d 608 (1973).
Perkins first challenges the following statement made by the prosecutor during her
opening statement:
And eventually you are going to hear that Mr. Parker did go to the police
and the reasons that he eventually went to the police is that these two defendants
were locked up. [Emphasis added.]
-5-
Perkins next challenges the following exchange between the prosecutor and Parker on the basis
of improperly eliciting evidence of his incarceration for unrelated crimes:
[Prosecutor]: What made you um, willing to tell and not be afraid at that
point in time?
[Parker]: Well, they was [sic] incarcerated for one, and I just had to get it
off my chest.
[Prosecutor]: Okay. So by the time you tell the police what you saw are
they both locked up to your knowledge?
[Parker]: Correct. [Emphasis added.]
* * *
[Prosecutor]: Did it make it easier for you to make that decision knowing
that these two gentlemen were locked up?
[Parker]: Kind of[,] but you know I got siblings out here so I got to be
careful. [Emphasis added.]
We begin our analysis by noting that this is not a case where a prosecutor asked an
unrelated question which elicited a surprise response from a witness revealing a defendant’s
incarceration. Rather, it was the prosecutor who divulged defendant’s incarceration, and she did
so numerous times. However, the record divulges that the prosecutor thought she had legitimate
reasons to bring up defendant’s pre-trial incarceration. First, the prosecutor believed there was
an issue as to why and when Parker came forward with his eyewitness testimony. The
implication was that Parker, fearing retribution by defendants, went to the police only after
defendants had been incarcerated. However, even if true, the record is, at best, unclear as to the
necessity of the State introducing defendants’ incarceration.1 Hence, in the absence of any
argument or showing on appeal as to the necessity of this line of questioning, we find that the
prosecutor improperly referenced defendant Perkins’s pretrial incarceration.
The next issue then becomes whether such improper references warrant reversal.
Remarks are improper and constitute prosecutorial misconduct requiring reversal when they
deprive defendant of a fair and impartial trial. People v Watson, 245 Mich. App. 572, 594; 629
NW2d 411 (2001). We evaluate prosecutor comments “in context,” “in light of defense
arguments,” and in relation to the evidence. Brown, 267 Mich. App. at 152. Here, the nature of
the statements regarding defendants’ pre-trial incarceration did not disclose the nature of the
charges against defendants, nor did the comments reveal that any charges in addition to the ones
for which defendants were currently on trial were the impetus for their pre-trial incarceration.
1
The State’s brief on appeal erroneously framed this issue as one involving the prosecutor
suggesting that defendants had committed other crimes.
-6-
However, it is our examination of the prosecutor’s improper remarks in relation to the
evidence presented which leads us to make a finding that defendant is not entitled to a new trial
on this issue. In this matter, the jury heard testimony from an alleged eyewitness who testified
that he watched Perkins shoot the victim in the head at close range. The testimony of the
eyewitness was collaborated by the medical examiner who affirmed that the fatal shot was fired
at close range. Moreover, any prejudice defendant might have suffered was remediated by the
trial court’s subsequent instruction that “[t]he lawyers’ statements and arguments and any
commentary are not evidence. . . .” “Jurors are presumed to follow instructions, and instructions
are presumed to cure most errors.” People v Petri, 279 Mich. App. 407, 414; 760 NW2d 882
(2008). In the absence of any evidence to the contrary, we must presume that the jurors followed
the trial court’s instructions and refused to consider the prosecution’s improper argument as
evidence against defendant. Accordingly, defendant is not entitled to relief on this issue.
2. APPEAL TO THE JURY’S SYMPATHY
“Appeals to the jury to sympathize with the victim constitute improper argument.”
Watson, 245 Mich. App. at 591. Although a prosecutor may not argue facts unsupported by the
evidence or mischaracterize the evidence presented, the prosecutor may argue reasonable
inferences from the evidence. Id. at 588.
Defendant Perkins challenges the following statements made by the prosecutor during her
opening statement:
And lastly, I’m going to tell you you [sic] are also going to hear evidence
with regards to Mr. Perkins that he is a convicted felon.
And you are going to hear that evidence and it is important that you use
that evidence only for the purpose that it is introduced.
And in other words the law does not permit me to argue to you well he
must have done it he’s a violent felon. The purpose of that evidence is not to
show that he committed the crime of murder or aiding and abetting of the murder
it’s to show that he possessed a firearm when he lawfully did not have the right to
do so. [Emphasis added.]
Additionally, defendant Perkins argues that the prosecutor infected unfairness in his trial when
the prosecutor, during her closing argument, encouraged the jury to look at defendant Perkins’s
in-court demeanor.
On the issue of the prosecutor informing the jury that Perkins was a felon, defendant fails
to demonstrate that an error occurred. A prosecutor may make comments and arguments in light
of the admitted evidence at trial. Seals, 285 Mich. App. at 22. Perkins was charged with felon-in-
possession, which requires the prosecution to prove that the defendant possessed a firearm while
ineligible to do so under MCL 750.224f as a result of a prior felony conviction. MCL 750.224f;
see also People v Perkins, 262 Mich. App. 267, 269-270; 686 NW2d 237 (2004), abrogated in part
on other grounds by People v Smith-Anthony, 494 Mich. 669 (2013). To establish that the prior
felony conviction element was met, a stipulation was entered during trial that defendant Perkins
had, indeed, been previously convicted of a felony. In light of this admitted evidence, the
-7-
prosecutor properly commented and explained that she did not have to argue or prove defendant
Perkins was a “violent felon” in order to support this element. Because the prosecutor’s
comments accurately stated the evidence later admitted at trial, there is no error. However, even
if the prosecutor’s comments were considered an error, the trial court’s instructions were
sufficient to cure any potential prejudicial effect. Seals, 285 Mich. App. at 22.
The question of whether it was proper for the prosecution to comment on defendant
Perkins’s in-court demeanor is not as clear. However, it is unnecessary to determine whether the
prosecutor’s argument exceeded the bounds of a permissible argument because defendant
Perkins is unable to show that a miscarriage of justice occurred. Brown, 279 Mich. App. at 134.
The central issue at trial was the credibility of Parker’s identification of defendant Perkins as the
shooter and not whether defendant Perkins demonstrated a consciousness of guilt by his in-court
demeanor. As discussed in more detail below in Part II(B)(1), Parker’s identification testimony
was supported by other evidence admitted at trial. Additionally, the trial court instructed the
jurors not to let sympathy or prejudice influence their decision, and not to consider the lawyers’
statements and arguments as evidence when making a decision. These instructions were
sufficient to cure any potential prejudicial effect of any alleged error, and defendant Perkins fails
to rebut the presumption that the jury followed the trial court’s instructions. See Petri, 279 Mich
App at 414. Accordingly, defendant Perkins has failed to establish that he was denied a fair and
impartial trial as a consequence of prosecutorial misconduct. See Brown, 279 Mich. App. at 134.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant Perkins, in his Standard 4 brief, argues that defense counsel was ineffective
for failing to (1) investigate and present a police interrogation tape of Parker to use for
impeachment purposes, and (2) investigate and present two alibi witnesses at trial.
An ineffective assistance of counsel claim is a mixed question of fact and constitutional
law. People v Trakhtenberg, 493 Mich. 38, 47; 826 NW2d 136 (2012). We review a trial court’s
findings of fact for clear error, and questions of constitutional law de novo. 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 and quotation marks omitted). When a
claim of ineffective assistance of counsel is unpreserved for appellate review, our review is
limited to errors apparent on the record. Id. “If the record does not contain sufficient detail to
support defendant’s ineffective assistance claim, then he has effectively waived the issue.”
People v Davis, 250 Mich. App. 357, 368; 649 NW2d 94 (2002).
Criminal defendants have a right to effective assistance of counsel under both the United
States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20. To prevail on an
ineffective assistance of counsel claim, defendant must show: (1) that counsel’s performance fell
below an objective standard of reasonableness under prevailing professional norms, and (2) that
there is a reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different. People v Vaughn, 491 Mich. 642, 669; 821 NW2d 288 (2012) (citation and
quotation marks omitted). “Effective assistance of counsel is presumed, and the defendant bears
a heavy burden of proving otherwise.” Eisen, 296 Mich. App. at 329 (quotation marks and
citation omitted). Additionally, a defendant’s burden includes the burden of persuasion in
establishing a factual predicate for his claim. Putman, 309 Mich. App. at 248.
-8-
1. IMPEACHMENT EVIDENCE
“Trial counsel is responsible for preparing, investigating, and presenting all substantial
defenses.” People v Chapo, 283 Mich. App. 360, 371; 770 NW2d 68 (2009). A substantial
defense is one that could have made a difference in the trial’s outcome. Id. More specifically,
trial counsel has a “duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.” Trakhtenberg, 493 Mich. at 53. However, trial
counsel is presumed to implement sound trial strategy, Gaines, 306 Mich. App. at 310, 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).
On this issue, Perkins argues that the production of the alleged interrogation tape would
have revealed that Parker did not volunteer information; rather, the police coerced Parker into
naming defendant Perkins as the shooter to exculpate himself from criminal liability. In support
of his argument, Perkins relies on a written police report containing Parker’s statements wherein
the “interrogation” box of the form was marked and not the “interview” box. Defendant
Perkins’s reliance on the police report is an improper attempt to expand the record on appeal as
the report was not admitted as evidence below. Thus, we may decline to consider it as
evidentiary support for the issue. See People v Williams, 241 Mich. App. 519, 524; 616 NW2d
710 (2000) (“[P]arties cannot enlarge the record on appeal . . . .”) However, even if we were to
consider the police report as evidentiary support for the issue, defendant Perkins fails to produce
any evidence that an interrogation tape exists, that defense counsel did not investigate the
existence of an interrogation tape, and that Parker was coerced into identifying defendant Perkins
as the shooter. Additionally, record evidence reveals that defense counsel seized the opportunity
to cross-examine Parker regarding his testimony. Hence, even assuming evidence of an
interrogation tape exists, defense counsel could have simply decided the evidence was
unnecessary, which is a decision we will not second-guess. Unger, 278 Mich. App. at 242-243.
Accordingly, defendant is not entitled to relief on this issue.
2. EXCULPATORY ALIBI WITNESSES
Trial counsel’s decision whether to call a witness at trial is presumed to be sound trial
strategy. Meissner, 294 Mich. App. at 460. Generally, “the failure to call a witness can constitute
ineffective assistance of counsel only when it deprives the defendant of a substantial defense.”
People v Payne, 285 Mich. App. 181, 190; 774 N.W.2d 714 (2009) (quotation marks and citation
omitted). In other words, only when a defendant can demonstrate that the witness testimony
could have made a difference in the trial’s outcome. See Chapo, 283 Mich. App. at 371.
On this issue, Perkins argues that had Maria Perkins and Michelle Solomon testified, they
would have absolved him of criminal liability because Maria would have testified that he was at
home, drunk and asleep, on the night of the incident, and Solomon would have testified that
Perkins was always home before midnight. The record is devoid of any mention of either
witness. In an improper attempt to expand the record on appeal, defendant Perkins attaches a
self-executed affidavit as well as an affidavit executed by his appellate counsel. We may decline
to consider these affidavits as evidentiary support for the issue. See Williams, 241 Mich. App. at
524 (“[P]arties cannot enlarge the record on appeal by the use of affidavits.”) However, even if
-9-
we were to consider the affidavits as evidentiary support, appellate counsel states that he was
unable to locate Maria and Solomon to obtain affidavits from them, and that when he was able to
speak with them on the phone, neither witness recalled particular details of the night of the
incident. Thus, Perkins has failed to establish a factual predicate for his claim, and thus, fails to
overcome the presumption that defense counsel provided effective assistance of counsel. See
Putman, 309 Mich. App. at 248. Similarly, Perkins fails to demonstrate that their testimony
would have made a difference in the outcome of the trial in light of their inability to recall details
from the night of the incident. Accordingly, there are no mistakes apparent from the record, and
thus, defendant Perkins is not entitled to a remand or a new trial on the basis of ineffective
assistance of counsel.
Affirmed.
/s/ Michael J. Talbot
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
-10-