People of Michigan v. Marco Franklin Castillo ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 18, 2023
Plaintiff-Appellee,
v No. 360753
Huron Circuit Court
MARCO FRANKLIN CASTILLO, LC No. 2020-306549-FH
Defendant-Appellant.
Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial conviction and sentence for assault with intent
to do great bodily harm less than murder, MCL 750.84. The trial court sentenced defendant, as a
second-offense habitual offender, MCL 769.10, to 18 months to 15 years’ imprisonment. On
appeal, defendant contends that the trial court erred by (1) improperly admitting certain evidence,
(2) improperly instructing the jury, and (3) improperly scoring offense variable (OV) 7 during
sentencing. Defendant also claims numerous instances of ineffective assistance by his trial
counsel. We affirm.
I. BACKGROUND
Defendant’s conviction and sentence arise from a fight between he and Michael Bucholtz
on April 28, 2020, at Bucholtz’s home. Each claimed self-defense and asserted that the other
started the fight. At the time, Bucholtz was allowing defendant to stay in a bedroom of his home.
Defendant moved in with Bucholtz sometime in the weeks before the April 2020 fight. However,
their relationship soon soured, with the issues between them ultimately culminating in the fight.
Both defendant and Bucholtz admitted that, during this incident, each attacked the other with a
blunt object, with defendant using a baseball bat and Bucholtz using a metal pipe and chain.
Bucholtz was hospitalized and suffered significant injuries from the fight.
The jury initially was unable to reach a unanimous verdict but, after the court gave a
deadlock jury instruction, it deliberated further and found defendant guilty of assault with intent
to do great bodily harm less than murder. The trial court sentenced defendant as described earlier.
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As relevant here, the trial court assessed defendant 50 points under OV 7 for aggravated physical
abuse. This appeal followed.
II. ANALYSIS
A. ADMISSION OF EVIDENCE
Defendant argues that the trial court erred by admitting (1) the photographs of Bucholtz’s
home taken by Marna Adamets, Bucholtz’s girlfriend, well after the fight took place, and (2) a
damaged ceiling light fixture collected from the home over a year later. We disagree.
Ordinarily, “[t]he decision whether to admit evidence is within the trial court’s discretion,
which will be reversed only where there is an abuse of discretion.” People v Gursky, 486 Mich
596, 606; 786 NW2d 579 (2010). “A trial court abuses its discretion when its decision falls outside
the range of principled outcomes.” People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010)
(quotation marks and citation omitted). However, because defendant did not object at trial to
admission of the evidence he now challenges on appeal, this issue is unpreserved for review. See
People v Thorpe, 504 Mich 230, 252; 934 NW2d 693 (2019). Unpreserved evidentiary issues are
reviewed for plain error affecting substantial rights. Id. at 252. To establish entitlement to relief
under plain-error review,
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. The third
requirement generally requires a showing of prejudice, i.e., that the error affected
the outcome of the lower court proceedings. . . . Reversal is warranted only when
the plain, forfeited 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. [People v
Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999) (quotation marks and
citations omitted).]
According to defendant, the evidence at issue was unreliable and, therefore, unduly
prejudicial and inadmissible under MRE 403. Defendant claims that the photographs were
unreliable because they were not taken by police while investigating the scene, but instead
Adamets took the photos after the police left Bucholtz’s home. Defendant argues that there “was
no indicia of reliability that Adamets did not move things, change things, remove things or in any
other way alter the scene of the altercation before taking her photographs,” and that the pictures
were “overwhelming prejudicial” because Adamets had a clear motive to present the scene
favorably for Bucholtz. Defendant argues that the light fixture was similarly unreliable because it
was collected by police over a year after the April 2020 fight and anything, including new or
additional damage, could have happened to the light fixture during this intervening period.
Defendant concedes that the photographs and light fixture may have been relevant under
MRE 401. However, defendant claims that “the manner in which they were obtained by law
enforcement through a third party with motive to skew the facts in favor of [Bucholtz] put their
reliability and authenticity into question.” Defendant, given these alleged evidentiary defects and
because his and Bucholtz’s credibility were key to this case, asserts that the jury likely gave undue
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or preemptive weight to this evidence. Defendant argues, therefore, that the trial court plainly
erred by improperly admitting this evidence, which cast him in an extremely negative light and
suggested to the jury that he was a violent person.
In Michigan, challenges to the authenticity of evidence involve two related,
but distinct, questions. The first question is whether the evidence has been
authenticated—whether there is sufficient reason to believe that the evidence is
what its proponent claims for purposes of admission into evidence. The second
question is whether the evidence is actually authentic or genuine—whether the
evidence is, in fact, what its proponent claims for purposes of evidentiary weight
and reliability. [Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich App 144,
154; 908 NW2d 319 (2017) (emphasis omitted).]
“The first question is reserved solely for the trial judge. In the role as evidentiary
gatekeeper, the trial judge must make the initial determination of whether the evidence is
admissible—a question that depends, among other things, on whether the evidence can be
authenticated.” Id. at 154-155. To authenticate evidence, its proponent must only offer “evidence
sufficient to support a finding that the matter in question is what its proponent claims.” Id. at 155
(quotation marks and citation omitted). See also MRE 901(a). “[E]vidence supporting
authentication may be direct or circumstantial and need not be free of all doubt.” Mitchell, 321
Mich App at 155.
“Once the proponent of the evidence has made th[is] prima facie showing, the evidence is
authenticated under MRE 901(a) and may be submitted to the jury.” Id.[T]he second question—the weight or reliability (if any) given to the evidence—is
reserved solely to the fact-finder . . . . When a bona fide dispute regarding the
genuineness of evidence is presented, that issue is for the jury, not the trial court.
Accordingly, the parties may submit evidence and argument, pro and con, to the
jury regarding whether the authenticated evidence is, in fact, genuine and reliable.
[Id. at 156.]
Relatedly, this Court has stated that for real evidence, like the light fixture at issue here,
“an adequate foundation for admission requires testimony first that the object offered is the object
which was involved in the incident, and further that the condition of the object is substantially
unchanged.” People v Kemp, 99 Mich App 485, 489; 298 NW2d 1 (1980) (quotation marks and
citation omitted).1 “A proper foundation for the admission of photographs is made if someone
who is familiar from personal observation of the scene or person photographed testifies that the
photograph is an accurate representation of the scene or person.” In re Robinson, 180 Mich App
454, 460; 447 NW2d 765 (1989). “Photographs are admissible despite changes in the condition
of the scene or person where a person testifies as to the extent of the changes.” Id. at 460-461.
1
Although this Court is not required to follow cases decided before November 1, 1990, see MCR
7.215(J)(1), a published case decided by this Court “has precedential effect under the rule of stare
decisis,” MCR 7.215(C)(2).
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Furthermore, relevant evidence is generally admissible. See MRE 402; People v Starr, 457
Mich 490, 497; 577 NW2d 673 (1998). Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” MRE 401. But, even if the evidence is
relevant and otherwise admissible under MRE 401 and MRE 402, a trial court may exclude
evidence “if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” MRE 403; see also Feezel, 486 Mich at 198.
Assessing probative value against prejudicial effect requires a balancing of several
factors, including the time required to present the evidence and the possibility of
delay, whether the evidence is needlessly cumulative, how directly the evidence
tends to prove the fact for which it is offered, how essential the fact sought to be
proved is to the case, the potential for confusing or misleading the jury, and whether
the fact can be proved in another manner without as many harmful collateral effects.
[People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008).]
“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.”
Id.While defendant faults the trial court for admitting the photographs and the light fixture
because the evidence was unreliable, the weight or reliability of evidence is an issue for the jury
only after evidence has been admitted by the court. See Mitchell, 321 Mich App at 156. Further,
we conclude that there was a proper foundation to admit this evidence. Specifically, Adamets
testified extensively as to the photographs’ accuracy. Although some of the pictures were taken
an hour or so after the fight, some later in the evening, and some days later; Adamets was clear in
describing the circumstances surrounding each image and any changes she had made to the scene
since the fight occurred. And Bucholtz, Adamets, and Huron County Sheriff’s Office Lieutenant
Ryan Neuman all testified that the light fixture, despite being recovered by police well after the
fight, was damaged during the fight and thereafter was substantially unchanged. Given the proper
foundation for admission, whether this evidence was genuine and reliable, including whether the
evidence accurately depicted the scene, was a question reserved for the jury.
Moreover, the challenged evidence was not unduly prejudicial under MRE 403. Reviewing
the photographs and the testimony regarding the light fixture, we conclude that there was no danger
that the evidence would be given undue or preemptive weight by the jury, that it would be
inequitable to allow use of the evidence, or that there would be a danger that the evidence would
stir the jurors to such passion so as to be swept beyond rational consideration of defendant’s guilt
or innocence. See Blackston, 481 Mich at 462. The photographs merely depict the scene of the
fight after Bucholtz was hospitalized and the police left the home. While these images certainly
show that the fight was violent, particularly given the blood spatter depicted, nothing indicates
they were enhanced or otherwise altered to distort the nature of the incident and inflame the jury.
See People v Mills, 450 Mich 61, 77; 537 NW2d 909 (1995) (“The photographs are accurate factual
representations of the injuries suffered by [the victim] and the harm the defendants caused her.
The photographs did not present an enhanced or altered representation of the injuries. Although
the photographs are graphic, their probative value was not substantially outweighed by their
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possible prejudice.”). Similarly, nothing suggests that the light fixture was altered other than it
was dismantled from the ceiling. Accordingly, the trial court did not err by admitting the
photographs and the light fixture now challenged by defendant.
B. JURY INSTRUCTION
Defendant argues that the trial court erred by not giving jurors the standard deadlock
instruction. We disagree.
Ordinarily, issues of law arising from jury instructions are reviewed de novo on appeal,
“[b]ut a trial court’s determination whether a jury instruction is applicable to the facts of the case
is reviewed for an abuse of discretion.” People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006)
(quotation marks and citation omitted). Jury instructions are to be read as a whole rather than
extracted piecemeal to establish error. People v Kowalski, 489 Mich 488, 501; 803 NW2d 200(2011). Even if somewhat imperfect, instructions do not create error if they “fairly presented the
issues to be tried and sufficiently protected the defendant’s rights.” People v Eisen, 296 Mich App
326, 330; 820 NW2d 229 (2012) (quotation marks and citation omitted). Because defendant did
not object to the trial court’s deadlock instruction until after the jury deliberated, we review this
issue for plain error affecting substantial rights. See People v Gonzalez, 256 Mich App 212, 225;
663 NW2d 499 (2003).2
Defendant argues that the trial court’s modified deadlock instruction was improper and
coercive by requiring the jury to deliberate for an unreasonable amount of time contrary to People
v Hardin, 421 Mich 296, 318-319; 365 NW2d 101 (1984). According to defendant, it was
inappropriate for the trial court to determine that the jury’s initial four-hour deliberation was
insufficient and to indicate that jurors were expected to continue deliberations for an open-ended
amount of time, possibly for days. Defendant further argues that the trial court improperly and
substantially deviated from the standard deadlock instruction. Defendant also argues that the trial
court’s instructions were rambling, repetitive, and confusing to the jury. Lastly, defendant argues
that this error was obvious, and that he was prejudiced by the improper instruction. Defendant
notes that the jury was unable to reach a verdict after substantial deliberations, asserting that the
jury only found him guilty because it likely was coerced by the trial court’s instruction.
In People v Walker, 504 Mich 267; 934 NW2d 727 (2019), our Supreme Court recently
summarized the requirements of a deadlock instruction—commonly called an Allen3 charge—as
follows:
2
We disagree with the prosecution that defendant waived this issue. A defendant waives a claim
of instructional error by expressly approving the instruction on the record. See Kowalski, 489
Mich at 504 (“[B]y expressly and repeatedly approving the jury instructions on the record,
defendant waived any objection to the erroneous instructions, and there is no error to review.”).
While defendant did not object to the trial court’s deadlock instruction before the jury continued
deliberations, he never expressed any explicit approval of the instruction.
3
Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896).
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The goal of such an instruction is to encourage further deliberation without coercing
a verdict. If the charge has the effect of forcing a juror to surrender an honest
conviction, it is coercive and constitutes reversible error.
This Court adopted a standard deadlocked-jury instruction that has since been
incorporated into our model jury instructions. Although the model instruction is an
example of an instruction that strikes the correct balance, it is not the only
instruction that may properly be given. The relevant question is whether the
instruction given could cause a juror to abandon his or her conscientious dissent
and defer to the majority solely for the sake of reaching agreement. The inquiry
must consider the factual context in which the instruction was given and is
conducted on a case-by-case basis. [Id. at 277-278 (cleaned up).]
The standard instruction for a deadlocked jury states:
(1) You have returned from deliberations, indicating that you believe you cannot
reach a verdict. I am going to ask you to please return to the jury room and resume
your deliberations in the hope that after further discussion you will be able to reach
a verdict. As you deliberate, please keep in mind the guidelines I gave you earlier.
(2) Remember, it is your duty to consult with your fellow jurors and try to reach
agreement, if you can do so without violating your own judgment. To return a
verdict, you must all agree, and the verdict must represent the judgment of each of
you.
(3) As you deliberate, you should carefully and seriously consider the views of your
fellow jurors. Talk things over in a spirit of fairness and frankness.
(4) Naturally, there will be differences of opinion. You should each not only
express your opinion but also give the facts and the reasons on which you base it.
By reasoning the matter out, jurors can often reach agreement.
(5) If you think it would be helpful, you may submit to the bailiff a written list of
the issues that are dividing or confusing you. It will then be submitted to me. I will
attempt to clarify or amplify the instructions in order to assist you in your further
deliberations.
(6) When you continue your deliberations, do not hesitate to rethink your own
views and change your opinion if you decide it was wrong.
(7) However, none of you should give up your honest beliefs about the weight or
effect of the evidence only because of what your fellow jurors think or only for the
sake of reaching agreement. [M Crim JI 3.12.]
Here, the trial court’s instruction essentially was verbatim to the standard deadlock jury
instruction, with the court explicitly referencing all seven prongs of the standard instruction.
However, the trial court added information not in the standard deadlock instruction by commenting
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on the jurors’ previous time and effort on the case and noting, “I feel that maybe after some further
thinking—and you get an opportunity to sleep on it, too. That may help as well.”
The trial court’s additional commentary to the instruction did not improperly coerce the
jury. There was no force or threat that jurors deliberate for an unreasonable amount of time or
other improper coercion. Defendant largely relies on the trial court’s statement that jurors would
“get” to sleep on their views. However, given that the jury had adjourned from the day before and
had not yet begun its second day of deliberations, the trial court was commenting upon the jurors’
previous efforts in the case. Therefore, it appears the trial court was referring to the fact that the
jurors “got” to sleep on their views, and the word “get” either was a spoken or stenographic error.
There is nothing else in the record beyond the single word “get” to suggest that the trial court
informed the jury that it would require yet another day of deliberations.
Furthermore, defendant’s reliance on Hardin, 421 Mich 296, is misplaced. While Hardin
provides that “[t]he court shall not require or threaten to require the jury to deliberate for an
unreasonable length of time or for unreasonable intervals,” id. at 318-319 (quotation marks and
citation omitted), the Court held that no such error occurred with similar instructions to that here,
id. at 319-320. Specifically, the trial court in Hardin generally stated to jurors that it felt they
needed to deliberate further, and later told jurors that they may be able to reach a verdict after a
night’s sleep. Id. at 319. According to our Supreme Court, “Although there was what could
perhaps be characterized as a plea to try to reach a verdict, there was no statement to the effect that
the jury must reach a verdict, or to the effect that the failure to reach a verdict constituted a violation
of the jurors’ civic duty, or that they would be required to deliberate until they reached a verdict.”
Id. at 319-320 (quotation marks and citations omitted).
Here, similarly, while the trial court’s additional commentary could be viewed as a plea for
the jury to reach a verdict, nothing indicated that the jury was required to do so or that deliberations
would continue until a verdict was reached. The trial court’s additional commentary, including
the isolated statement about jurors sleeping on the matter, does not contradict or otherwise
overshadow its earlier clear and near-verbatim recitation of the standard deadlock instruction.
Even if the trial court indicated that deliberations could continue another day or longer with the
sleep-on-it reference, this isolated statement, given the court’s prior detailed recitation of the
standard deadlock instruction, did not pressure jurors to abandon their conscientious dissent and
defer to the majority solely for the sake of reaching agreement. Nothing in the record shows
coercion to force jurors to surrender their honest convictions.
We conclude, therefore, that the trial court’s instruction was not improperly coercive.
Rather, the trial court’s instruction fairly presented the issues to be tried and sufficiently protected
the defendant’s rights. Eisen, 296 Mich App at 330. The trial court’s deadlock instruction was
not erroneous.
C. OV 7 SCORING
Defendant argues that the trial court erred by assessing him 50 points under OV 7, which
he claims should have been assessed at 0 points. We disagree.
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“When reviewing a trial court’s guidelines scoring decisions, the trial court’s factual
determinations are reviewed for clear error and must be supported by a preponderance of the
evidence.” People v Lydic, 335 Mich App 486, 490; 967 NW2d 847 (2021) (quotation marks and
citation omitted). “A finding of fact is clearly erroneous if, after a review of the entire record, an
appellate court is left with a definite and firm conviction that a mistake has been made.” Id.(quotation marks and citation omitted). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id. (quotation marks and
citation omitted). “Offense variables are properly scored by reference only to the sentencing
offense except when the language of a particular offense variable statute specifically provides
otherwise.” Id. at 491 (quotation marks and citation omitted). However, because defendant never
raised this issue at sentencing, in a motion for resentencing, or in a motion to remand filed in this
Court, we review this issue for plain error affecting substantial rights. See People v Loper, 299
Mich App 451, 456-457; 830 NW2d 836 (2013).
OV 7, which concerns aggravated physical abuse, provides that 50 points should be
assessed when
[a] victim was treated with sadism, torture, excessive brutality, or similarly
egregious conduct designed to substantially increase the fear and anxiety a victim
suffered during the offense. [MCL 777.37(1)(a).]
A sentencing court applying OV 7 must conduct the following analysis:
If the case involves conduct consisting of one or more of the categories of sadism,
torture, or excessive brutality, then OV 7 applies. If the case does not involve one
or more of the categories of sadism, torture, or excessive brutality, then the
sentencing court must determine whether the case involves “similarly egregious
conduct” to at least one of those categories. If it does, the court also must determine
whether the conduct substantially increased a victim’s fear and anxiety. If all those
factors are met, then OV 7 applies for purposes of the fourth category of conduct.
[Lydic, 335 Mich App at 496-497 (footnotes omitted).]
Furthermore, each category of aggravated physical abuse requires conduct beyond the
minimum required to commit a particular offense. See People v Hardy, 494 Mich 430, 443; 835
NW2d 340 (2013) (“[A]ll relevant evidence should be closely examined to determine whether the
defendant engaged in conduct beyond the minimum necessary to commit the crime, and whether
it is more probable than not that such conduct was intended to make the victim’s fear or anxiety
increase by a considerable amount.”). “The elements of assault with intent to do great bodily harm
less than murder are (1) an attempt or threat with force or violence to do corporal harm to another
(an assault), and (2) an intent to do great bodily harm less than murder.” People v Brown, 267
Mich App 141, 147; 703 NW2d 230 (2005) (cleaned up).
According to defendant, his actions were not aggravated in any way to allow the trial
court’s assessment of 50 points under OV 7. Defendant emphasizes that, while he injured
Bucholtz, he never intended to inflict any abuse or suffering, and he immediately admitted his
actions to police in claiming self-defense. He also notes he immediately asked Michael Jerrell,
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another person living in Bucholtz’s home, to call 911 and Jerrell’s statement to the dispatcher that
Bucholtz hit defendant first. Defendant claims that, because (1) he did not engage in any prolonged
assault and (2) there was no evidence that he intended to increase Bucholtz’s fear or anxiety, his
actions did not constitute excessive brutality. Defendant also faults the trial court for failing to
place any justification on the record for its scoring of OV 7. In sum, defendant claims that there
was insufficient evidence that he intended to be sadistic, tortuous, or excessively brutal, and that
he should have been assessed 0 points under OV 7.
We conclude that the trial court properly scored OV 7. First, as recently clarified by this
Court and contrary to defendant’s argument, only the fourth category under OV 7 requires an intent
to substantially increase a victim’s fear or anxiety. Lydic, 335 Mich App at 496-497. More
importantly, the evidence here was sufficient for the trial court to conclude that defendant
committed excessive brutality beyond the minimum required to commit the offense. Specifically,
defendant’s conviction did not require the use of a weapon or multiple blows to Bucholtz, facts
uncontested by defendant here. See id. at 498-499 (“Defendant’s actions, as found by the trial
court, certainly involved excessive violence beyond the minimum required to commit the offense
of assault by strangulation. Assault by strangulation does not require the use of a weapon, and by
using a belt, defendant increased the physical severity of the offense. The use of the belt thus
satisfies the requirement of excessive brutality, and OV 7 applies.”) (citation and footnote
omitted). The brutality of defendant’s conduct was further established by the significant injuries
Bucholtz suffered from the fight, most notably the four fractures to various parts of his head and
the two broken ribs. In addition to the particularly violent assault, the record also shows that
defendant was making disturbing threats against Bucholtz shortly before the fight, with Jerrell
stating that defendant continued directing threats and vulgarity toward Bucholtz even as he was
incapacitated on the kitchen floor.
Under these circumstances, the trial court did not err in scoring OV 7. While the trial court
admittedly did not place any explicit reasoning concerning OV 7 on the record, the evidence
nevertheless supports assessing defendant 50 points under this variable, specifically under the
excessive-brutality prong. Because there was no error concerning OV 7, the trial court properly
calculated defendant’s minimum sentencing guidelines range, and he is not entitled to
resentencing.
D. INEFFECTIVE ASSISTANCE
Defendant raises numerous claims of ineffective assistance regarding trial counsel’s
performance. We disagree with each claim.
“Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v Abcumby-Blair, 335 Mich App 210, 227; 966 NW2d 437(2020) (quotation marks and citation omitted). “Findings of fact are reviewed for clear error, while
constitutional determinations are reviewed de novo.” Id. (quotation marks and citation omitted).
“A finding is clearly erroneous if this Court is left with a definite and firm conviction that the trial
court made a mistake.” Id. at 227-228 (quotation marks and citation omitted). However, defendant
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never preserved his claims of ineffective assistance by moving for a new trial or for a Ginther4
hearing. See People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). This Court reviews
unpreserved claims of ineffective assistance of counsel for errors apparent from the record. People
v Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011).
A defendant claiming ineffective assistance of counsel must establish (1) that counsel’s
performance was defective and (2) prejudice:
In order to establish the right to a new trial premised on ineffective
assistance of counsel, a 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 proceedings would have been different. [Abcumby-Blair, 335 Mich App at
228.]
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. (quotation marks and citation omitted). “There is a presumption that counsel was
effective, and a defendant must overcome the strong presumption that counsel’s challenged actions
were sound trial strategy.” People v Cooper, 309 Mich App 74, 80; 876 NW2d 452 (2015). “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.” Id.(cleaned up).
Defendant argues that trial counsel’s performance was deficient by (1) failing to contest
admission of Adamets’s photographs and the light fixture, (2) failing to timely object to the trial
court’s deadlock instruction before the jury continued deliberating, and (3) failing to object to the
scoring of OV 7.
As discussed, none of defendant’s alleged underlying errors have merit. “Failing to
advance a meritless argument or raise a futile objection does not constitute ineffective assistance
of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Accordingly,
these claims of ineffective assistance must fail. We acknowledge that failure to establish plain
error affecting substantial rights does not necessarily preclude a claim of ineffective assistance
regarding counsel’s performance concerning the underlying error. People v Randolph, 502 Mich
1, 22; 917 NW2d 249 (2018). Nevertheless, because we earlier concluded that there was no error
at all, let alone plain error, regarding these underlying issues, trial counsel was not ineffective in
forgoing meritless arguments and objections.
Furthermore, defendant in his Standard 4 brief argues that trial counsel was additionally
ineffective by (1) failing to further question the prosecution’s medical expert regarding Bucholtz’s
head, ankle, and facial injuries; (2) otherwise failing to bring these facts to the jury’s attention; (3)
failing to mention and make the jury aware of defendant’s hospital visit following the fight; and
4
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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(4) failing to provide defendant’s medical records as evidence.5 Decisions as to what evidence to
present, People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004), how to question a
witness, id., and what evidence to focus on in a closing statement, People v Horn, 279 Mich App
31, 39; 755 NW2d 212 (2008), are presumed to be matters of trial strategy. Here, defendant
provides no argument whatsoever that these actions constituted deficient performance, that he was
prejudiced by the conduct, or to overcome the burden that counsel’s actions were sound trial
strategy. Instead, he conclusively asserts that trial counsel “was ineffective” given the described
conduct.
But trial counsel did question an emergency room physician who treated Bucholtz after the
fight regarding his injuries, including explicitly questioning the physician on whether Bucholtz’s
head injuries could have been caused by hitting the table or a corner of the wall during the fight;
trial counsel also questioned the physician to clarify for the record that Bucholtz’s ankle injury
was likely from a fall and/or twisted ankle. Trial counsel also elicited testimony from defendant
concerning the injuries he suffered from the fight.
No error is apparent from our review of the record concerning trial counsel’s approach to
these matters. For these reasons, these claims of ineffective assistance must also fail.
III. CONCLUSION
There were no errors warranting relief. We affirm.
/s/ Anica Letica
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
5
The Standard 4 brief, despite seemingly raising an issue in the statement of questions presented
concerning the admissibility of the medical expert’s testimony, lacks any actual argument on this
issue. Accordingly, there is nothing to analyze for this stated issue. See Wilson v Taylor, 457
Mich 232, 243; 577 NW2d 100 (1998) (“[A] mere statement without authority is insufficient to
bring an issue before this Court. It is not sufficient for a party simply to announce a position or
assert an error and then leave it up to this Court to discover and rationalize the basis for his claims
. . . .”) (quotation marks and citation omitted).
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