People of Michigan v. Jermaine Arnet Cooper ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 7, 2018
Plaintiff-Appellee,
v No. 336662
Kent Circuit Court
JERMAINE ARNET COOPER, LC No. 16-001841-FC
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and MARKEY and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL
750.317, 1 and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b, for which he was sentenced as a fourth-habitual offender, MCL 769.12, to consecutive
terms of 750 months’ to 100 years’ imprisonment and 2 years’ imprisonment, respectively. We
affirm.
I. FACTUAL BACKGROUND & PROCEDURAL HISTORY
Defendant was in a long-term relationship and living with victim MM in Holland,
Michigan, on November 5, 2015. Several people witnessed defendant and the victim arguing
that day. Defendant accused the victim of blocking him from calling her cellular telephone and
expressed jealousy at the possibility of other suitors. At approximately 4:00 a.m. of the
following morning, November 6, 2015, members of a Grand Rapids City street-sweeping crew
saw the victim exit a black Cadillac, scream for help, and get shot five times by a black male
wearing a varsity-type jacket with sports-related patches. Several witnesses that lived near the
scene of the crime described hearing the victim’s screams for help and hearing gunshots. One
such witness saw a black male who was approximately 6 feet tall and 200 pounds get back into
the vehicle and drive away after the shooting. The victim died from a gunshot wound to her
neck before police or an ambulance arrived.
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Defendant was tried on a charge of open murder, MCL 750.316.
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After speaking with witnesses, the police identified defendant as a suspect in the case.
Defendant, however, fled from police, eventually hiding out in a house in Detroit. When police
surrounded the house approximately one month after the murder, defendant refused to surrender
even after 70 canisters of tear gas were projected into the home. However, defendant ultimately
was arrested and charged with open murder and felony-firearm.
His trial took place over the course of six days, during which the prosecution offered
evidence that defendant was 6 feet, 2 inches tall and 170 pounds; he owned a gun that matched
the bullets and shell casings found at the scene of the crime, in the car defendant often drove, and
in defendant’s bedroom; he often wore a varsity-style jacket that matched the eye-witnesses’
descriptions; a keychain he was known to carry was found at the scene of the crime; his cellular
telephone data showed that he travelled from Holland to Grand Rapids between 3:30 a.m. and
4:00 a.m.; the black Cadillac out of which the victim exited was often driven by defendant and
was recovered in the parking lot of the apartment complex where defendant’s brother, Brian
Cooper, lived; surveillance video showed the black Cadillac arriving at Brian’s apartment at 4:21
a.m.; one of the victim’s gunshot wounds was consistent with being shot by someone in the
driver’s seat of a car while she was sitting in the passenger seat of a car; the victim’s blood,
DNA, and belongings were found in the black Cadillac; and defendant sent an apologetic text
message to the victim’s 15-year-old son, JB, at 4:46 a.m.
The prosecution theorized that defendant was angry with the victim due to jealousy,
drove her to Grand Rapids where he shot and killed her, and then fled with the help of his brother
and mother. Defendant presented a defense of mistaken identity. He claimed that someone else
shot and killed the victim when she went out by herself to buy drugs. Defendant contended that
the crime was meant as a punishment for him and was likely committed by the same person that
shot his ex-girlfriend and mother of two of his children, SW, when defendant was in jail.
The defense theory relied on SW’s testimony about the shooting, the toxicology report
from the victim’s autopsy that showed she had prescription drugs and cocaine in her blood at the
time of her death, and alleged errors in the police investigation of the victim’s death and their
failure to connect it to SW’s shooting. The prosecution called SW as a witness, and during direct
examination, she testified that she was shot after defendant was already in jail. On cross-
examination, defendant elicited testimony from SW that she reported her shooting to the officers
investigating the victim’s murder, but that they did not seem interested in her information and
never determined her assailant. During redirect, the prosecution asked SW about the specifics of
her shooting. SW testified that, on the day she was shot, she was driving to her brother’s
residence to pick someone up. When she arrived, a robbery was in progress. SW acknowledged
that she was not normally at that residence during the day, suggesting that someone would not be
able to expect her presence there. Further, SW testified that one person living at the residence
informed her that several masked men entered the residence and attempted a robbery. SW did
not testify that the masked men entered the residence looking for her. Additionally, SW stated
that she was still outside when the masked men exited the residence, where she was shot by one
of them while they escaped. Although shot, SW was able to flee from the area, and her shooter
did not give chase.
Despite the obvious dissimilarities in the shootings and clear indications that the shooters
were not there to kill her, when asked by the prosecution if she thought the two shootings were
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related, SW said that she could not be sure. In an attempt to show her bias, the prosecution then
asked SW if she was afraid of defendant. SW denied being afraid of him. The prosecution then
asked SW if she previously was physically assaulted by defendant just before the murder was
committed. SW testified that they had a “disagreement,” but that their interaction was not
physical. The prosecution impeached SW with a previous statement she made to the police that
shortly before the murder, she and defendant argued when defendant expressed jealousy about
SW possibly seeing another man. SW told the police that defendant pushed her down, which
caused her to hit her head on some furniture. SW spent some time in the hospital and had a scar
from the incident. SW continued to deny her previous statement at trial, asserting that her
interaction with defendant was not physical. The prosecution later called Officer Allen, who
took the original statement from SW, to corroborate that SW had previously complained to him
about defendant’s abuse shortly before the murder.
Ultimately, the jury convicted defendant of second-degree murder and felony-firearm and
the trial court sentenced defendant accordingly. Defendant moved for a new trial, asserting that
the prosecution had committed misconduct during closing argument. The trial court denied that
motion. This appeal followed. Defendant brings claims regarding the sufficiency of the
evidence, prosecutorial misconduct, other acts evidence, ineffective assistance of counsel, his
motion for a new trial, and ex parte communication.
II. SUFFICIENCY OF THE EVIDENCE
Defendant, in his Standard 4 brief, argues that there was insufficient evidence to convict
him of second-degree murder. We disagree.
A. STANDARD OF REVIEW & GENERAL LAW
“We review de novo a challenge on appeal to the sufficiency of the evidence.” People v
Henry, 315 Mich App 130, 135; 889 NW2d 1 (2016), quoting People v Ericksen, 288 Mich App
192, 195; 793 NW2d 120 (2010). “To determine whether the prosecutor has presented sufficient
evidence to sustain a conviction, we review the evidence in the light most favorable to the
prosecutor and determine ‘whether a rational trier of fact could find the defendant guilty beyond
a reasonable doubt.’ ” People v Smith-Anthony, 494 Mich 669, 676; 837 NW2d 415 (2013),
quoting People v Tennyson, 487 Mich 730, 735; 790 NW2d 354 (2010). “The standard of
review is deferential: a reviewing court is required to draw all reasonable inferences and make
credibility choices in support of the jury verdict.” People v Bailey, 310 Mich App 703, 713; 873
NW2d 855 (2015), quoting People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
There is sufficient evidence for a guilty verdict where “a rational trier of fact could find
the defendant guilty beyond a reasonable doubt.” Tennyson, 487 Mich at 735. “The prosecution
need not negate every reasonable theory of innocence, but need only prove the elements of the
crime in the face of whatever contradictory evidence is provided by the defendant.” People v
Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014). “Circumstantial evidence and the
reasonable inferences that arise from that evidence can constitute satisfactory proof of the
elements of the crime.” People v Blevins, 314 Mich App 339, 357; 886 NW2d 456 (2016). Any
and all conflicts that arise in the evidence must be resolved “in favor of the prosecution.”
Henderson, 306 Mich App at 9. “It is for the trier of fact, not the appellate court, to determine
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what inferences may be fairly drawn from the evidence and to determine the weight to be
accorded those inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
“In order to convict a defendant of second-degree murder, the prosecution must prove: (1) a
death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or
excuse.” People v Roper, 286 Mich App 77, 84; 777 NW2d 483 (2009) (internal quotation
marks omitted). Further, “it is well settled that identity is an element of every offense.” People
v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008).
Defendant challenges only the identity element of the crime. “[T]his Court has stated
that positive identification by witnesses may be sufficient to support a conviction of a crime,”
and that “[t]he credibility of identification testimony is a question for the trier of fact that we do
not resolve anew.” People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000). A
perpetrator’s identity can be established by evidence that is entirely “circumstantial and
sometimes requires reliance on an inference founded on an inference . . . .” People v Bass, 317
Mich App 241, 264; 893 NW2d 140 (2016).
B. ANALYSIS
There is significant circumstantial evidence of defendant’s identity as the person who
shot and killed the victim. Four separate witnesses testified that they saw defendant and the
victim arguing in the afternoon preceding the murder. JB stated that although defendant and the
victim sometimes argued, the argument that occurred on the day in question was longer and more
intense than previous arguments. Tania Gomez, the victim’s best friend, was surprised at the
intensity of the argument, stated that defendant did not seem like himself, and was worried when
the victim refused to leave with Gomez when defendant demanded that she stay. Cheata Lor,
who was familiar with defendant and the victim as patrons of her party store, testified that she
often saw defendant and the victim in her store, but that she had never seen them argue before.
She also noted that defendant made statements expressing jealousy, indicating his belief that the
victim was seeing another man. JB stated that the fight went on most of the day and night, dying
down at around 10:00 p.m.
Defendant’s cellular telephone records showed that between 3:30 a.m. and 4:00 a.m., he
travelled from Holland, where he and the victim had been arguing, to Grand Rapids. In Grand
Rapids, at around the same time defendant’s cellular records show that he arrived in the city, a
street-sweeping crew saw the victim exit the passenger door of a black Cadillac and get shot. A
multitude of witnesses testified that defendant primarily drove the black Cadillac. Although the
street-sweeping crew could not positively identify defendant as the shooter, one street sweeper
described the shooter as a black male wearing a varsity-type jacket with sports-related patches on
the sleeves. DC, defendant and the victim’s 11-year-old son, and JB, who both lived with
defendant, and defendant’s neighbor, testified that defendant owned and wore a jacket matching
that description. DC also testified that a penguin keychain found at the murder scene belonged
to defendant. Further, a witness that lived near the scene of the murder stated that he saw a black
male of a body-type similar to defendant’s run from the scene of the crime and drive away in a
black car. A reasonable juror could infer that defendant was the shooter where defendant’s
cellular telephone placed him in Grand Rapids, his keys were found at the scene of the murder,
the shooter and the victim exited a vehicle matching the description of a car that defendant
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regularly drove, the shooter was wearing a jacket that looked like a jacket which defendant was
known to wear, and a witness described the shooter as having a similar body-type to defendant’s.
The cellular telephone records then showed that Brian, defendant’s brother who lived 2.6
miles from the scene of the crime, called, and received two calls from, defendant within 10
minutes of the shooting. Within 15 minutes of a conversation between defendant and Brian, a
security camera showed the black Cadillac pull into the parking lot of Brian’s apartment
complex, drive all the way to the back of that parking lot, and park. The vehicle was later
discovered in that parking lot and verified to be the black Cadillac that defendant regularly
drove. Inside of the car, the police discovered the victim’s blood, DNA, belongings, and cash;
ammunition corresponding to that used to kill the victim; and receipts from Georgia, where
defendant worked. From that evidence, a reasonable juror could infer that after killing the
victim, or immediately before, he attempted to get into contact with his brother. When he was
finally able to do so, he drove to his brother’s apartment complex and abandoned the black
Cadillac, which was clearly connected to the murder. Further, jurors could infer that the black
Cadillac being driven to that spot immediately after leaving the shooting showed that defendant
was the shooter, because it is logical that defendant would drive to a family member’s residence.
Moreover, the Georgia receipts in the car support that defendant regularly drove it, the
ammunition and the victim’s blood suggested that she was shot and beaten therein, and the
money left in her wallet created an inference that the victim was not killed during a robbery. All
of that evidence points directly to defendant as the shooter.
There is additional circumstantial evidence that defendant sent an emotional text to JB,
essentially saying goodbye to him, and spoke with two of his other children in a manner that
suggested he would not see them again. A reasonable juror could infer that defendant made
those communications because he was concerned that he was going to go to jail after murdering
the victim. The apologetic nature of the text message to JB, who was the victim’s son, and the
sad but not apologetic nature of his communication with his other children, who were SW’s
children, create a logical inference that defendant was apologizing to JB for murdering his
mother.
Another inference that defendant was the shooter could be made from the firearms
evidence. Testimony from JB, DC, and defendant’s other brother, Michael Kitchen, supported
that defendant owned a Glock 9-mm handgun. That testimony was corroborated by magazine
clips and bullets that would fit that gun being found in defendant’s residence. A firearms expert
stated that the spent shell casings and fired bullets were compatible with a Glock 9-mm handgun.
This included the bullets found in defendant’s house, the shell casing and bullet found in the car
defendant often drove that also contained the victim’s blood, and the shell casings and jacket
found at the scene of the murder. That evidence plainly allows for an inference that defendant
used his Glock 9-mm gun to shoot and kill the victim.
The prosecution also presented evidence that defendant fled after the victim’s death.
Cellular telephone records support that defendant’s mother, Rita Cooper, was in Grand Rapids at
around the time of the murder, that defendant was with her at some point when he called SW and
his children from Rita’s telephone, and that she travelled from Grand Rapids to Muskegon
during the early morning hours shortly following the murder. A reasonable juror could infer that
defendant got in contact with his mother and asked her to drive him to some place that he could
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hide from the police. Defendant’s flight from the scene of the crime, however, did not stop in
Muskegon. The police eventually found defendant, after approximately one month of searching,
at a house in Detroit—the other side of the state of Michigan from Muskegon. Even when
defendant was surrounded by police and they filled the house he was in with tear gas, he still
continued his attempts to evade arrest.
It is well established law in Michigan that a defendant’s flight is evidence of his guilty
conscience. People v Unger, 278 Mich App 210, 226; 749 NW2d 272 (2008). Thus, a
reasonable juror could infer that defendant fled to Muskegon and then Detroit because of his
guilt and he was attempting to evade prosecution. Id. When police finally tracked him down, his
continued refusal to exit the surrounded and tear gas filled house show that he was not likely
fleeing from some drug dealers that were out to get him, as suggested by SW’s testimony and
that defendant offered in his defense. A logical juror could infer that, if defendant truly was
fleeing from potential harm at the hands of a drug dealer, he would have freely exited the Detroit
house and to potential safety when he was made aware that the police were outside. Instead, the
evidence suggests that defendant was hiding from police because he murdered the victim. See
id.Considering all of this circumstantial evidence—and the reasonable inferences
therefrom—there was sufficient evidence to support a jury’s decision that defendant was angry
with the victim due to jealousy, drove her to Grand Rapids where he beat her and shot her with
his gun while she still was in the car, shot her four more times when she attempted to escape,
drove to his brother’s house to hide his vehicle, got a ride from his mother to Muskegon, and
then attempted to hide out and evade arrest in Detroit.
Defendant’s contention is essentially that there was no direct evidence of his identity as
the shooter. But Michigan law does not require direct evidence of identity, and the
circumstantial evidence provided by the prosecution that defendant shot and killed the victim is
very substantial. Bass, 317 Mich App at 264. There was sufficient evidence of defendant’s
identity to convict him of second-degree murder. See id.
III. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecution committed misconduct requiring reversal during
closing arguments. Defendant argues that the prosecution improperly disparaged defense
counsel, asserted facts not in evidence, and shifted the burden of proof to defendant. There being
no error requiring reversal, we disagree.
A. PRESERVATION & STANDARD OF REVIEW
In cases alleging prosecutorial misconduct, there must be a “contemporaneous objection
or request for a curative instruction in regard to any alleged error” in order to preserve the issue
for review before this Court. People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008).
Defendant objected to the relevant portions of the prosecution’s closing argument on the grounds
that the prosecution was disparaging defense counsel and arguing facts not in evidence. Thus,
those issues are preserved for review. Id. However, defendant did not object on the ground that
the prosecution was shifting the burden of proof to him. “[A]n objection on one ground is
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insufficient to preserve an appellate argument based on a different ground.” People v Danto, 294
Mich App 596, 605; 822 NW2d 600 (2011). Thus, defendant’s objections related to the
prosecution’s disparaging defense counsel statement and assertion of facts not in evidence did
not preserve his argument with respect to burden shifting. See id. Consequently, that portion of
defendant’s argument on appeal is not preserved for this Court’s review. Id.; Brown, 279 Mich
App at 134.
For the preserved issues, “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.” Brown,
279 Mich App at 134. For defendant’s burden shifting contention, which was not preserved for
review, this Court must review the “unpreserved claim for plain error affecting defendant’s
substantial rights.” People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014). “To
avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In order to show that a
defendant’s substantial rights were affected, there must be “a showing of prejudice, i.e., that the
error affected the outcome of the lower court proceedings.” Id. As such, “[r]eversal is only
warranted if defendant was actually innocent and the plain error caused defendant to be
convicted or ‘if the error “seriously affected the fairness, integrity, or public reputation of
judicial proceedings,” ’ regardless of defendant’s innocence.” Roscoe, 303 Mich App at 648,
quoting People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004), quoting People v
Ackerman, 257 Mich App 434, 449; 669 NW2d 818 (2003).
B. APPLICABLE LAW & ANALYSIS
“Given that a prosecutor’s role and responsibility is to seek justice and not merely
convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). When
considering allegations of prosecutorial misconduct, this Court must “examine the entire record
and evaluate a prosecutor’s remarks in context.” Id. at 64. “[A] prosecutor is free to argue the
evidence and all reasonable inferences arising from it as [it] relate[s] to . . . [the] theory of the
case.” People v Johnson, 315 Mich App 163, 201; 889 NW2d 513 (2015) (internal quotation
marks omitted; alterations in original). “The prosecution has wide latitude in arguing the facts
and reasonable inferences, and need not confine argument to the blandest possible terms.”
Dobek, 274 Mich App at 66.
However, the prosecution is not permitted to “imply . . . that the defendant must prove
something or present a reasonable explanation for damaging evidence because such an argument
tends to shift the burden of proof.” People v Fyda, 288 Mich App 446, 463-464; 793 NW2d 712
(2010). Although, “[w]here a defendant . . . advances, either explicitly or implicitly, an alternate
theory of the case that, if true, would exonerate the defendant, comment on the validity of the
alternate theory cannot be said to shift the burden of proving innocence to the defendant.”
People v Reid, 233 Mich App 457, 478; 592 NW2d 767 (1999) (internal quotation marks
omitted). Similarly, “[a]rguments regarding the weight and credibility of the witnesses and
evidence presented by defendant do not shift the burden to the defendant to prove his innocence,
but rather question the reliability of the testimony and evidence presented.” People v Fields, 450
Mich 94, 107; 538 NW2d 356 (1995). Simply stated, “attacking the credibility of a theory
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advanced by a defendant does not shift the burden of proof.” People v McGhee, 268 Mich App
600, 635; 709 NW2d 595 (2005). Further, “a prosecutor may not argue facts not in evidence or
mischaracterize the evidence presented . . . .” People v Watson, 245 Mich App 572, 588; 629
NW2d 411 (2001).
1. ALLEGED PROSECUTORIAL ERRORS
First, considering the preserved issues, defendant challenges the prosecution’s statement
during an objection, and then later during rebuttal, that the gun used to shoot SW was not the
same gun that was used to shoot and kill the victim. Defendant is correct that the prosecution
asserted that the record contained evidence establishing that the gun used in SW’s shooting was
not the same as the gun used in the victim’s murder. A review of the record, however, provides
that no such evidence was ever admitted during trial. Regardless of the veracity of the
prosecution’s claim that the guns were indeed different, the issue remains that such evidence had
not been properly admitted at trial. Thus, the prosecution improperly argued facts not in
evidence. Watson, 245 Mich App at 588. However, as further discussed, infra, that error is not
grounds for reversal.
Defendant also argues that the prosecution inappropriately disparaged defense counsel by
calling him “dishonest.” At another point during rebuttal, the prosecution asserted that defense
counsel was attempting to “trick” the jury. “It is true that a prosecuting attorney may not
personally attack defense counsel.” People v McLaughlin, 258 Mich App 635, 646; 672 NW2d
860 (2003). Furthermore, the prosecution “may not suggest that defense counsel is intentionally
attempting to mislead the jury.” Unger, 278 Mich App at 236 (internal quotation marks
omitted). When the prosecution called defense counsel “dishonest,” and indicated that he was
attempting to “trick” the jury, she was “in effect stating that defense counsel does not believe his
own client . . . [an] argument [that] undermines the defendant’s presumption of innocence . . .
[and] impermissibly shifts the focus from the evidence itself to the defense counsel’s
personality.” Id., quoting People v Wise, 134 Mich App 82, 101-102; 351 NW2d 255 (1984).
Such an argument also was in error but, again, this does not require reversal.
Lastly, in his unpreserved argument, defendant challenges the portion of the
prosecution’s rebuttal argument during which the prosecution asserted that evidence that the gun
used in both shootings was the same or that defendant was somewhere else other than the scene
of the crime would undoubtedly have come out during trial, if it existed. Defendant asserts that
the prosecution’s argument essentially shifted the burden of proof onto defendant to prove his
innocence.
During defendant’s opening statement and closing argument, he repeatedly alleged that
there was a likelihood that the shooting of SW was related to the victim’s murder. Defendant
asserted that the police did not properly investigate SW’s shooting, so the jury was left to guess
whether or not the gun used to shoot SW was the same gun used to kill the victim. Defendant
posited that the prosecution likely did not ask the police about that possibility because the
government did not want its case tainted. On rebuttal, the prosecution directed the jury’s
attention to the fact that defense counsel was permitted to ask the officers if the gun used in both
crimes was the same, but he had not. The prosecution suggested that if such evidence existed,
defense counsel would have promptly and repeatedly asked such a question of the officers. The
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prosecution also commented on the likelihood that defendant was somewhere other than the
scene of the murder, noting that all of the evidence—including cellular telephone data, eye
witness testimony regarding the car and the man that was driving it, and the place the police
found the black Cadillac—strongly suggested that defendant was with the victim in the vehicle
when she was shot and killed. The prosecution commented on the fact that all of the evidence
placed defendant at the scene of the crime, and that no evidence placed him anywhere else.
The statements by the prosecution regarding the similarity of the shootings did not shift
the burden of proof to defendant, but merely commented “on the validity of [his] alternate theory
of the case that, if true, would exonerate [him] . . . .” Reid, 233 Mich App at 478 (internal
quotation marks omitted). Defendant claimed that someone else must have shot the victim,
because a similar shooting occurred while he was in jail. If the jury believed that legal theory,
defendant would have been exonerated. Thus, although the prosecution was not permitted to
explicitly state that the guns used in each shooting were different, as the report establishing that
fact was not admitted as evidence, the prosecution was permitted to comment on the validity of
defendant’s theory of the case by pointing out the dearth of evidence that the crimes were
similar, including a lack of evidence that the guns were the same. Further, the prosecution did
not err when noting that defense counsel would have pursued that line of questioning with
investigating officers during cross-examination if it was helpful to his case. However, this would
have placed additional focus on the lack of evidence that the shootings were connected, as
defendant had argued in the opening and closing arguments. From that, the prosecution urged
the jury to infer that the shootings were dissimilar. The prosecution properly attacked the
veracity of defendant’s theory of the case, and permissibly argued inferences arising from the
evidence presented at trial in argumentative terms. Id.; Dobek, 274 Mich App at 66.
The prosecution also argued inferences arising from the evidence when she stated that
defendant was at the scene of the crime and no other evidence placed him anywhere else. Most
of the prosecution’s arguments on that account were based on inferences from the evidence,
which suggested that only the defendant was at the scene of the crime. Clearly, the prosecution
was permitted to argue that defendant was at the scene of the crime as an inference arising from
abundant circumstantial evidence establishing that he was there and a lack of evidence
establishing that he was anywhere else. See id.; see also Reid, 233 Mich App at 478.
However briefly, the prosecution did suggest that defendant should have or would have
introduced evidence of his whereabouts if there was proof that he was anywhere other than the
murder scene. That argument, instead of commenting on the lack of evidence, could tend to
place the burden on defendant that he should have provided proof of where he was at the time of
the murder. This was improper to do. But, although those comments might have resulted in
error, this Court has held that “[a]n otherwise improper remark may not rise to an error requiring
reversal when the prosecution is responding to the defense counsel’s arguments.” Watson, 245
Mich App at 593 (internal quotation marks omitted). Here, the prosecution was responding to
defense counsel’s repeated assertions that the police had not properly investigated the crime. In
rebutting that argument, the prosecution properly noted that every piece of evidence supported
that defendant was at the scene of the crime. The prosecution was not required to make those
arguments in the “blandest possible terms.” Dobek, 274 Mich App at 66.
2. HARMLESS ERROR OR PREJUDICE
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“ ‘A constitutional error is harmless if “[it is] clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the error.” ’ ” People v Shepherd,
472 Mich 343, 347; 697 NW2d 144 (2005), quoting People v Mass, 464 Mich 615, 640 n 29; 628
NW2d 540 (2001), quoting Neder v United States, 527 US 1, 19; 119 S Ct 1827; 144 L Ed 2d 35(1999). For unpreserved arguments, defendant is required to prove that his substantial rights
were affected by the error, namely that the outcome of trial would have been different but for the
errors. Carines, 460 Mich at 763. “Curative instructions are sufficient to cure the prejudicial
effect of most inappropriate prosecutorial statements.” People v Seals, 285 Mich App 1, 22; 776
NW2d 314 (2009).
Immediately following the prosecution’s statement that defense counsel was “dishonest,”
the trial court instructed the jury that the attorneys’ statements were only related to their theories
of the case, but that the jury was charged with deciding the case based only on the evidence.
Later, during the final jury instructions, the trial court informed the jury that the attorneys’
statements and arguments were not evidence and should not be considered as proof of any facts.
The trial court specified that the lawyers’ comments “are only meant to help you understand the
evidence and each side’s legal theories.” In light of the extensive amount of evidence presented
at trial, and considering the relatively very brief reference to defense counsel’s dishonesty, of
evidence not in the record, and oblique inference of burden shifting in the prosecution’s closing,
we conclude that error arising out of those statements was cured by the trial court’s instructions.
See Seals, 285 Mich App at 22. Further, even disregarding the jury instructions, any error was
harmless beyond a reasonable doubt, and thus, was also not outcome determinative. As noted,
supra, the evidence that defendant murdered the victim is substantial even though it is
circumstantial.
Additionally, the crux of defendant’s prosecutorial misconduct arguments is that the
prosecution improperly asserted that defense counsel was misleading the jury by suggesting that
SW’s shooting was related to the victim’s death. To wit, defendant contends that the prosecution
erred by saying defense counsel was “dishonest” for asserting the theory, arguing facts not in
evidence regarding the guns used in each shooting, and shifting the burden of proof defendant to
show that he was not in the car with the victim. However, the evidence admitted at trial plainly
established that the two shootings were unrelated. The defense theory was that someone
intended to kill the victim and SW as some sort of punishment for defendant. Despite that
theory, on cross-examination, SW testified that she was shot only after interrupting a robbery
taking place at her brother’s residence. In other words, the purpose of the shooting was a
robbery, which SW had the misfortune of happening upon, and was not related in any way to
defendant nor was its purpose to shoot and kill SW. This was further supported by SW’s
testimony that the shooters did not chase her when she ran away from the scene. Thus, even
without the prosecution’s alleged errors in closing, the jury already was presented with abundant
evidence of not only defendant’s guilt, but that the defense theory of retaliatory shootings of the
mothers of defendant’s children was completely unsupported by the evidence admitted at trial.
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Consequently, we hold that reversal is not warranted because any errors were harmless
beyond a reasonable doubt and not outcome determinative. Shepherd, 472 Mich at 347; Carines,
460 Mich at 763.2
IV. EVIDENCE OF WITNESS BIAS
Defendant argues that evidence of his previous physically abusive interactions with JB
and SW was inadmissible. We disagree.
A. STANDARD OF REVIEW
“When the issue is preserved, we review a trial court’s decision to admit evidence for an
abuse of discretion, but review de novo preliminary questions of law, such as whether a rule of
evidence precludes admissibility.” People v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612
(2014). “A trial court abuses it discretion when its decision results in an outcome falling outside
the range of principled outcomes.” People v Winters, 320 Mich App 506, 509; 904 NW2d 899
(2017). “[W]hen such preliminary questions of law are at issue, it must be borne in mind that it
is an abuse of discretion to admit evidence that is inadmissible as a matter of law.” Henry, 315
Mich App at 143, quoting People v Lukity, 460 Mich 484, 488; 596 NW2d 1607 (1999).
B. APPLICABLE LAW & ANALYSIS
Defendant challenges evidence introduced regarding previous instances where he was
physically violent toward JB and SW. Defendant asserts that the evidence was inadmissible
other acts evidence under MRE 404(b). Contrary to defendant’s arguments, we hold that the
evidence challenged was properly admitted to show JB’s and SW’s possible bias. Given that
conclusion, we need not address MRE 404(b) because “[t]hat our Rules of Evidence preclude the
use of evidence for one purpose simply does not render the evidence inadmissible for other
purposes.” Yost, 278 Mich App at 355, quoting People v Sabin (After Remand), 463 Mich 43,
56; 749 NW2d 753 (2008).3
2
In reaching this conclusion, we do not wish to minimize the errors made by the prosecutor
during her closing arguments. In a different, factually closer case, the errors would not be so
easily cured. As the case stands, however, the circumstantial evidence establishing that
defendant shot and killed the victim is overwhelming, so we see no reason for a new trial.
3
Briefly, even if we were to consider the evidence pursuant to MRE 404(b), we note it was still
properly admitted because it satisfied the test espoused by our Supreme Court in People v
VanderVliet, 444 Mich 52; 508 NW2d 114 (1993). Where the evidence was provided for a
proper purpose, to show JB’s and SW’s bias, the evidence was logically relevant to the stated
purpose, the high probative value of the evidence was not substantially outweighed by any
possible unfair prejudice, and the trial court provided a limiting instruction on other acts
evidence as requested by defendant. See People v Martzke, 251 Mich App 282, 290; 651 NW2d
490 (2002) (holding that although not included in the non-exhaustive list of proper purposes for
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“Bias is a term used in the ‘common law of evidence’ to describe the relationship
between a party and a witness which might lead the witness to slant, unconsciously or otherwise,
his testimony in favor of or against a party.” People v Layher, 464 Mich 756, 763; 631 NW2d
281 (2001), quoting United States v Abel, 469 US 45, 52; 105 S Ct 465; 83 L Ed 2d 450 (1984).
“Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-
interest.” Layher, 464 Mich at 763 (internal quotation marks omitted). “Proof of bias is almost
always relevant because the jury, as finder of fact and weigher of credibility, has historically
been entitled to assess all evidence which might bear on the accuracy and truth of a witness’
testimony.” Id. (internal quotation marks omitted). Our Supreme Court clarified that evidence
of a witness’s potential bias is admissible “where, in its sound discretion, the trial court
determines that the admission of evidence is consistent with the safeguards of the Michigan
Rules of Evidence.” Id. at 758. In considering those “safeguards,” the Court held that so long as
the evidence was logically relevant to a witness’s bias pursuant MRE 402 and its probative value
was not substantially outweighed by the danger of unfair prejudice pursuant to MRE 403, then
the evidence was properly admitted. Id.“[L]ogical relevance is determined by the application of MRE 401 and MRE 402.”
People v Denson, 500 Mich 385, 400; 902 NW2d 306 (2017). “We have emphasized the
importance of logical relevance, calling it the ‘touchstone’ of [] admissibility . . . .” Id.“Relevance is a relationship between the evidence and a material fact at issue that must be
demonstrated by reasonable inferences that make a material fact at issue more probable or less
probable than it would be without the evidence.” People v Crawford, 458 Mich 376, 387; 582
NW2d 785 (1998). Meanwhile, logically relevant evidence might still be excluded where “its
probative value is substantially outweighed by the danger of unfair prejudice.” MRE 403.
Notably, MRE 403 does not regulate evidence that is simply “prejudicial” because “[r]elevant
evidence is inherently prejudicial.” People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995)
(internal quotations omitted). Rather, “[i]t is only when the probative value is substantially
outweighed by the danger of unfair prejudice that evidence is excluded.” Id. There is, therefore,
a two-part test: “[T]his Court must make two distinct inquires under the balancing test of MRE
403. First, this Court must decide whether introduction of [the] evidence at trial was unfairly
prejudicial. Then, this Court must apply the balancing test and weigh the probativeness or
relevance of the evidence against the unfair prejudice.” People v Cameron, 291 Mich App 599,
611; 806 NW2d 371 (2011) (internal quotation marks omitted).
“Unfair prejudice may exist where there is a danger that the evidence will be given undue
or preemptive weight by the jury or where it would be inequitable to allow use of the evidence.”
People v Gipson, 287 Mich App 261, 263; 787 NW2d 126 (2010), quoting People v Blackston,
481 Mich 451, 460; 751 NW2d 408 (2008). Stated differently, the “major function [of MRE
403] is limited to excluding matters of scant or cumulative probative force, dragged in by the
heels for the sake of its prejudicial effect.” Mills, 450 Mich at 75 (internal quotations omitted).
Such concerns arise where “the tendency of the proposed evidence [is] to adversely affect the
admission of other acts evidence in MRE 404(b)(1), “another proper purpose of other acts
evidence . . . is evidence offered to expose a witness’ bias.”).
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objecting party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g.,
the jury’s bias, sympathy, anger, or shock.” Cameron, 291 Mich App at 611 (internal quotation
marks omitted). Additional concerns include “the danger of confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” People v Watkins, 491 Mich 450, 489; 818 NW2d 296 (2012) (internal
quotation marks omitted).
The challenged evidence was logically relevant to exposing the biases of JB and SW,
thereby rebutting defendant’s claim of mistaken identity. The defense’s theory of the case was
that an unidentified person shot and killed the victim in a drug-related crime with the intent to
punish defendant for unknown reasons. That defense primarily relied on the lack of direct, eye-
witness testimony specifically identifying defendant as the shooter, and allegations that SW’s
shooting was similarly motivated to the victim’s murder. Thus, circumstantial evidence of
defendant’s identity as the shooter generally, and evidence that SW’s shooting and the victim’s
murder were entirely unrelated, specifically, were two factual concerns regarding the only
significant and contested issue at trial—defendant’s identity as the victim’s murderer.
During JB’s testimony, the prosecution asked JB whether defendant kept a gun in the
house. JB responded that defendant did, that JB had seen it on previous occasions, heard it
referred to as a “Glock” or a “9,” and that he had shot it in a field with defendant. When
prompted by the prosecution, JB acknowledged that the first time he met with the police he did
not divulge any information about defendant’s gun. When the prosecution asked him why he did
not tell the police immediately, JB said that he was afraid of defendant because defendant
previously physically abused him.
During direct examination by the prosecution, SW brought up her shooting that took
place after the murder. Then, on cross-examination, defense counsel thoroughly questioned SW
on those events, eliciting testimony supporting defendant’s claim of mistaken identity. During
re-direct examination, the prosecution asked SW if she was afraid of defendant and whether
defendant previously had pushed her down and injured her. When SW denied those events, the
prosecution impeached her with her previous statement to police. SW maintained that defendant
never physically injured her, despite her previous statement. Later during the trial, the
prosecution called as a witness Officer Allen, who was the officer that took SW’s initial
statement. Officer Allen testified that SW had a scar on her head and informed him that
defendant had recently been physically abusive.
The evidence was logically relevant to SW’s credibility and bias. The crux of Cooper’s
defense was that someone else shot and killed the victim in a drug-related incident. That defense
relied on the fact that SW also was shot while defendant was in jail. Defendant wished for the
jury to make the inference that if SW was shot shortly after the victim, then the two shootings
must have been related, and because defendant was in jail for the second one, he could not
possibly be guilty of either. SW provided important testimony for that defense, so her credibility
was a material issue at trial. See Layher, 464 Mich at 763-764. Further, the evidence of
defendant’s previous violence toward SW was highly probative of SW’s credibility. As our
Supreme Court noted, “[b]ias may be induced by a witness’ . . . fear of a party . . . .” Id., quoting
Abel, 469 US at 52. Thus, SW’s bias toward defendant, in the form of her fear of him, made it
more likely that SW was providing testimony that would be favorable to defendant’s claimed
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defense. The jury, as the “finder of fact and weigher of credibility,” was “entitled to assess all
evidence which might bear on the accuracy and truth of a witness’ testimony.” Layher, 464
Mich at 763, quoting Abel, 469 US at 52.
In regard to JB’s testimony, one of the primary issues at trial was defendant’s identity as
the shooter. At trial, JB testified that defendant had a gun that the firearms examiner would later
testify was consistent with the gun that was used to kill the victim. The fact that defendant had a
gun that correlated to the fired bullets and expended shell casings at the scene of the murder
made it more likely that defendant was the shooter. Thus, JB’s credibility was relevant to a
material issue—whether defendant was the perpetrator of the murder. Denson, 500 Mich at 401.
JB was confronted, however, with the fact that he had previously withheld that information from
the police. The proffered evidence that JB was afraid of defendant due to previous physical
interactions, and therefore felt the need to lie to police about defendant’s gun, was significantly
probative of JB’s bias, and thus, his credibility. The fact that JB was afraid of defendant when
he originally spoke with police makes it more likely that he lied by omission during the first
interview and was telling the truth at trial. Therefore, defendant’s prior abuse of JB was
logically relevant to a material issue at trial. Id.; Layher, 464 Mich at 763.
We must also consider whether pursuant to MRE 403 the evidence should be excluded
because the probative value of the evidence is substantially outweighed by the danger of unfair
prejudice. As discussed, the evidence was highly probative of JB’s and SW’s biases while
providing certain testimony, and therefore was probative of their credibility. The Michigan and
the United States Supreme Courts have provided that the credibility of a witness based on that
witness’s potential bias is an important issue for the jury to consider. Layher, 464 Mich at 763;
Abel, 469 US at 52. Further, SW’s and Officer Allen’s testimony about defendant’s interaction
with SW had a “heightened probative value,” due to similarities between the murder and
defendant’s assault of SW. See Bass, 317 Mich App at 261. In other words, not only did the
evidence regarding SW suggest that SW was likely afraid of defendant and consequently was
tailoring her testimony so as to avoid his anger, but it also supported defendant’s identity as the
perpetrator considering that he got violent with SW after becoming jealous about her potentially
seeing another man. See id. Notably, the evidence suggested that jealousy was also the motive
behind defendant’s ultimate murder of the victim. Thus, the danger of unfair prejudice of the
evidence of SW’s injuries at the hands of defendant did not substantially outweigh the
“heightened probative value” of that evidence. Id.; MRE 403.
JB’s testimony, meanwhile, helped to establish one of the primarily challenged issues at
trial—defendant’s identity as the perpetrator. The fact that defendant owned a gun that matched
the one used to kill the victim was highly probative of that material issue. Thus, JB’s credibility
was also important at trial, and the fact that he previously withheld information about the
defendant’s gun from police created an inference that his testimony at trial was potentially not
truthful. Therefore, JB’s fear of defendant when originally speaking with the police, while
defendant was still on the run, shows the bias of JB’s initial statement, making his trial testimony
more likely to be true. Given the high probative value of JB’s potential bias with respect to
defendant’s identity as the shooter and the slim chance that a jury would convict defendant of
murder for previously physically engaging with his step-son, we conclude the evidence was
properly not excluded under MRE 403. See Mills, 450 Mich at 75.
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In sum, the trial court did not abuse its discretion in admitting the challenged evidence at
trial, see Layher, 464 Mich at 763. And even if there were errors, they did not require reversal
because, given the overwhelming evidence of defendant’s guilt previously summarized in this
opinion, defendant suffered no prejudice. MCL 769.26.4
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied his constitutional right to the effective assistance of
counsel. Because the record reflects that defense counsel’s representation was not
constitutionally deficient, we disagree.
A. PRESERVATION & STANDARD OF REVIEW
In order to preserve a claim of ineffective assistance of counsel, a defendant is required to
“move the trial court for a new trial or a Ginther[5] hearing.” People v Jackson, 313 Mich App
409, 431; 884 NW2d 297 (2015). The record is plain that defendant never moved for a new trial
on the ground of ineffective assistance of counsel or for a Ginther hearing, so this issue is
unpreserved. Id. “Appellate review of an unpreserved argument of ineffective assistance of
counsel, like this one, is limited to mistakes apparent on the record.” Johnson, 315 Mich App at
174. “The denial of effective assistance of counsel is a mixed question of fact and constitutional
law, which are reviewed, respectively, for clear error and de novo.” People v Schrauben, 314
Mich App 181, 189; 886 NW2d 173 (2016), quoting Brown, 279 Mich App at 140.
B. APPLICABLE LAW & ANALYSIS
“Criminal defendants have a right to the effective assistance of counsel under the United
States and Michigan Constitutions.” Schrauben, 314 Mich App at 189-190, citing US Const, Am
VI; Const 1963, art 1, § 20. “However, effective assistance of counsel is presumed, and the
defendant bears a heavy burden of proving otherwise.” Schrauben, 314 Mich App at 190. The
United States Supreme Court has held that “in order to receive a new trial on the basis of
ineffective assistance of counsel, a defendant must establish that ‘counsel’s representation fell
below an objective standard of reasonableness’ and that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012), quoting Strickland v Washington,
466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “When reviewing defense
counsel’s performance, the reviewing court must first objectively ‘determine whether, in light of
all the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance.’ ” Jackson, 313 Mich App at 431, quoting Strickland, 466
US at 690. “Next, the defendant must show that trial counsel’s deficient performance prejudiced
his defense—in other words, that ‘there is a reasonable probability that, but for counsel’s
4
Again, as analyzed in note 3, supra, this evidence also was properly admitted pursuant to MRE
404(b).
5
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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unprofessional errors, the result of the proceeding would have been different.’ ” Jackson, 313
Mich App at 431, quoting Vaughn, 491 Mich at 669. This Court will not find trial counsel to be
ineffective where an objection would have been futile. Thomas, 260 Mich App at 457.
Defendant first asserts that trial counsel was ineffective for failing to object to portions of
the prosecution’s closing argument wherein the prosecution inappropriately shifted the burden of
proof to defendant. As discussed, supra, most of the prosecution’s arguments challenged by
defendant were proper attacks on the credibility of the defense’s theory of the case. Because
those arguments were proper, any objection by defense counsel would have been futile, so his
actions did not amount to ineffective assistance of counsel. Thomas, 260 Mich App at 457.
Defense counsel, however, also failed to object to the prosecution’s suggestion that
defendant should have produced evidence that he was somewhere other than the scene of the
crime. We noted, supra, that this argument by the prosecution was improper. Given the lack of
a Ginther hearing, however, there is nothing on the record to suggest that defense counsel’s
failure to object to that argument was not a trial strategy. It is logical to assume that defense
counsel may have avoided objecting to the prosecution’s assertion because it would have placed
additional focus on the fact that there was no exculpatory evidence of defendant’s location
admitted at trial. This Court and our Supreme Court have “recognized that ‘there are times when
it is better not to object and draw attention to an improper comment.’ ” People v Horn, 279
Mich App 31, 40; 755 NW2d 212 (2008), quoting People v Bahoda, 448 Mich 261, 287 n 54;
531 NW2d 659 (1995). “Furthermore, declining to raise objections, especially during closing
arguments, can often be consistent with sound trial strategy.” Unger, 278 Mich App at 242.
Because our review of this unpreserved issue is limited to mistakes apparent on the record, and
the record provides that defense counsel’s failure to object was likely due to trial strategy,
defendant has failed to overcome the strong presumption that defense counsel’s strategy was
reasonable. See id. at 243. This Court will not second guess matters of trial strategy. People v
Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999). Thus, defense counsel’s failure to
object did not fall below an objective standard of reasonableness. Id. Furthermore, given the
brevity of the prosecution’s statement and the significant evidence of defendant’s guilt, even if
defense counsel’s failure to object did fall below an objective standard of reasonableness,
Vaughn, 491 Mich at 669, defendant still failed to prove the second prong of an ineffective
assistance of counsel claim—that it was reasonably likely that “the result of defendant’s trial
would have been different” absent the alleged mistake. Unger, 278 Mich App at 243.
Next, defendant, in his Standard 4 brief, argues that defense counsel was ineffective for
failing to prepare an alibi defense. Defendant contends that Tamika McEwen, his aunt, could
have testified that defendant was with her during the time of the murder, but defense counsel did
not interview her or call her as a witness. Additionally, defendant argues that defense counsel
should have obtained and admitted video evidence from the security camera focused on the
parking lot of Brian’s apartment. Defendant contends that the video would have shown someone
else exiting the vehicle, thereby supporting his assertion that he was not the person driving the
black Cadillac.
Defense counsel’s “[d]ecisions regarding what evidence to present . . . are presumed to be
matters of trial strategy.” People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004)
(internal quotation marks omitted). “This Court will not substitute its judgment for that of
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counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the
benefit of hindsight.” Rockey, 237 Mich App at 76-77. “The defendant ‘bears the burden of
demonstrating both deficient performance and prejudice[;] the defendant [also] necessarily bears
the burden of establishing the factual predicate for his claim.’ ” People v Cooper, 309 Mich App
74, 80; 867 NW2d 452 (2015), quoting People v Carbin, 463 Mich 590, 600; 623 NW2d 884
(2001).
As noted, defendant first argues that McEwen could have provided an alibi for defendant
at the time of the crime. Michigan law is clear that defendant bears the burden of establishing a
factual predicate for his claim. Cooper, 309 Mich App at 80. There was nothing in the trial
court record to support that McEwen could provide such testimony. Thus, defendant failed to
carry his burden of establishing the factual predicate for his claim of ineffective assistance of
counsel. Id.6
Defendant also failed to bear the burden of establishing the factual predicate for his claim
that defense counsel should have reviewed video evidence which would have provided defendant
with an alibi. While defendant directs this Court to a police report suggesting that video of a
suspect exiting the vehicle and walking through the lawn of the apartment complex does exist,
the evidence does not support that the “suspect” seen walking in the lawn appeared materially
different than defendant. It is equally likely that the video showed a man that was similar in
appearance to defendant, the video was too dark for a juror to identify the person as looking like
anyone, or did not show any man at all. In any case, the mere fact that a video may have existed
does not support a factual predicate for defendant’s claim. Instead, the factual predicate for
defendant’s claim requires proof that the video showed a suspect that was at least plausibly
dissimilar to defendant’s appearance. Given the lack of such evidence on the record, defendant
failed to bear the burden of proving the factual predicate for his claim, and thus has provided no
reason for us to reverse his convictions. Cooper, 309 Mich App at 80.
Apparently foreseeing his issue with establishing a factual predicate, defendant, in his
Standard 4 brief, alternatively urges us to remand to the trial court for an evidentiary hearing to
better establish the record on these issues. The decision whether to order a remand for an
evidentiary or Ginther hearing is within our discretion. People v Hernandez, 443 Mich 1, 15;
503 NW2d 629 (1993), abrogated on other grounds by People v Mitchell, 454 Mich 145, 176;
560 NW2d 600 (1997). We decline defendant’s invitation, not only because he failed to properly
move for remand pursuant to MCR 7.211(C)(1), but also because his “offers of proof” are not
6
We acknowledge that defendant attached an affidavit to his Standard 4 brief on appeal, in
which he, and notably not McEwen, avers that she would have testified that defendant was with
her during the victim’s murder, that he informed defense counsel of that potential testimony, and
that defense counsel failed to follow up on it. We are not permitted to consider this affidavit,
because it was “not present[ed] . . . in the lower court,” and defendant is not permitted to
“expand the record on appeal.” People v Nix, 301 Mich App 195, 203; 836 NW2d 224 (2013);
MCR 7.210(A)(1). Further, absent an affidavit from McEwen herself, defendant has provided us
with nothing more than inadmissible hearsay evidence about his potential alibi. MRE 803.
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convincing. MCR 7.211(C)(1). We also note that, given the sheer amount of evidence showing
that defendant killed the victim, there is no reasonable probability that the jury would have
acquitted defendant if he provided alibi testimony from an inherently biased witness—a family
member—and a necessarily dark video from a security camera. Consequently, we believe a
remand would be futile, because defendant still would be unable to satisfy the second prong of
his ineffective assistance of counsel claim. Vaughn, 491 Mich at 669; Strickland, 466 US at 688.
Defendant has failed to overcome the “heavy burden of proving” that defense counsel
rendered ineffective assistance of counsel. Schrauben, 314 Mich App at 190.
VI. MOTION FOR A NEW TRIAL & EX PARTE COMMUNICATION
Defendant, in his Standard 4 brief, contends that the trial court abused its discretion by
relying on the travel restrictions of the victim’s family in denying his motion for a new trial, and
that he was denied a fair trial or due process of law when the trial court held an ex parte meeting
with the prosecution, the lead investigating officer, and the victim’s father. Because defendant’s
arguments have no basis in fact, we disagree.
As the appellant, “defendant [bears] the burden of furnishing the reviewing court with a
record to verify the factual basis of any argument upon which reversal was predicated.” People v
Elston, 462 Mich 751, 762; 614 NW2d 595 (2000). Stated differently, this Court will not reverse
a conviction where the defendant has failed to establish the factual predicate for his claim. Id.;
see also People v Lee, 391 Mich 618, 626-627; 218 NW2d 655 (1974) (holding that a defendant
must “give us a record on which to make a judgment.”).
The record shows that the trial court referenced the family’s travel plans when denying
defendant’s motion to adjourn the sentencing hearing, not in denying defendant’s motion for a
new trial. Thus, there is no factual basis whatsoever for defendant’s claim of error.
Consequently, because defendant did not bear his burden of establishing a factual predicate for
his claim, we have been provided no grounds to consider reversal. See Elston, 462 Mich at 762.
Similarly, defendant has not directed us to any portion of the record where an ex parte
communication occurred, and a review of the entire trial transcript does not reveal any such
event. Thus, defendant has failed to provide a factual predicate for his claim that would allow us
to review it. Id.VII. CONCLUSION
We find no errors that warrant reversal of defendant’s convictions.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Jane E. Markey
/s/ Michael J. Riordan
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