People of Michigan v. Deangelo Terrell Davis ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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. 350057
Wayne Circuit Court
DEANGELO TERRELL DAVIS, LC No. 18-006692-01-FC
Defendant-Appellant.
Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for first-degree murder,
MCL 750.316, assault with intent to commit murder, MCL 750.83, felon in possession of a firearm
(felon-in-possession), MCL 750.224f, and three counts of possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced, as a fourth-
offense habitual offender, MCL 769.12, to concurrent terms of life imprisonment without parole
for the murder conviction, 30 to 40 years’ imprisonment for the assault with intent to commit
murder conviction, and 1 to 5 years’ imprisonment for the felon-in-possession conviction to be
served consecutively to his two-year sentences for the felony-firearm convictions. We affirm.
I. BACKGROUND
The case arises from the fatal shooting of Jovan Flynn (the victim). On Memorial Day in
2018, the victim drove his mother’s silver Chevrolet Tahoe to the Citgo gasoline station on the
corner of Schoolcraft and Greenfield Roads in Detroit to purchase an item for a later barbeque.
The victim went into the convenience store while his long-time friend Bobby Gray, Jr. remained
in the Tahoe.
Defendant, who lived nearby, drove his mother’s black Chevrolet Equinox to the gas
station with three passengers. Gray noticed defendant because he was driving aggressively. After
defendant backed into a parking spot in front of the Citgo and across from the Tahoe, he and one
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of his passengers got out of the Equinox and went into the convenience store.1 Gray observed their
demeanor and opined that they were “high, drunk, drug[ged].”
A security camera captured defendant entering the convenience store at 4:05:08 p.m. It
also showed the victim exiting the store at 4:05:15 p.m. and returning to his Tahoe. The victim
was visibly upset and Gray inquired about what was upsetting him. The victim told Gray:
[M]an, these n***ers in the gas station are on tip [meaning they had a problem or
an issue]. I don’t know what they [are] on. What they lookin[g] for. What they
[sic] problem is. I had a stare down with them and some words.
Gray encouraged the victim to move forward with their plans for the day. At 4:06:03 p.m.,
the video captured defendant standing in between the Equinox’s opened door and looking at the
Tahoe. According to Gray, as the victim’s Tahoe passed defendant’s Equinox on the way out, the
victim and defendant locked eyes and the victim blurted out, “[W]hatever[;] it is what it is.” The
video also showed defendant pointing toward the Tahoe.
At 4:06:15 p.m., the Tahoe left the Citgo parking lot, turned left onto Schoolcraft Road,
and stopped for a red light. In the interim, defendant entered his vehicle, but then returned to the
Citgo store, opening the door and retrieving his passenger. Thirty-five seconds later, at 4:06:50
p.m., the Equinox left the Citgo.
The Tahoe turned right onto Greenfield Road and proceeded left onto Grand River Avenue.
The victim then informed Gray that “they were being followed by the guys from the gas station.”
Gray did not see the Equinox when he looked in the rearview mirror; however, when he looked in
his passenger-side mirror, he saw the speeding black Equinox approaching.
The victim slowed for a red light. Gray then heard a gunshot and a bullet crashed through
the Tahoe’s third-row rear passenger-side window from the direction of the Equinox. Gray quickly
ducked down. More gunshots—five or six—followed into the open window on the Tahoe’s
passenger-side. The victim fell over onto Gray after the second shot. The Tahoe continued moving
because the victim’s weight was on the gas pedal. Gray grabbed the steering wheel and crashed
the Tahoe into the wall of a nearby business at 4:08:20 p.m.2
By the time an ambulance arrived, the victim was dead. An autopsy concluded that the
victim died from gunshot wounds to his right neck and right chest.
Investigating police located five shell casings on Grand River Avenue. Four casings were
in decent shape and were .9-millimeter Luger caliber; the fifth casing was a mangled .45 auto
1
This was the second time defendant had been in the store with one of his passengers.
2
This was captured by another security camera. The distance from the Citgo gas station to the
crash site was less than a mile, and, at 4:08:43 p.m., another driver called 911 to report a shooting
involving a black Equinox and a gray Denali truck on Grand River Avenue with a person in the
gray Denali being hit.
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caliber. A forensic firearm and tool mark expert testified that all four .9-millimeter shell casings
were fired from the same weapon. This was also true of the five fired metal jacketed bullets and
bullet jackets the police recovered from the victim’s Tahoe. Those bullets and jackets were from
a .9-millimeter, .38-caliber, or .357 caliber class. By the time police searched defendant’s car and
the house he lived in ten or more hours after the shooting, they did not find a gun. Without it, the
expert could not determine whether the shell casings and bullets were fired from the same weapon.
Additionally, Crystal Massey, who had a professional relationship with defendant, and had
interacted with him approximately five to seven times since October 2018,3 identified defendant
from still photographs taken from the surveillance video footage as the driver of the Equinox due
to his “distinct smile.” Another police detective also testified that defendant’s cell phone was
active in the sector of the gas station and the location where the shooting occurred on the basis of
its data.
During closing argument, defense counsel contended that the evidence did not establish
that defendant was even present for the shooting, and, instead, defendant had returned to his nearby
home. Moreover, defendant had no motive to commit the crime. And, even if the jury somehow
concluded that defendant was at the scene of the shooting, he was merely present in the vehicle.
It was further argued that defendant was not an aider or abettor because he did not intend the
commission of the crimes or possess the firearm that killed the victim as evidenced by the later
unsuccessful searches for the weapon.
After the jury found defendant guilty as charged, he moved for a Ginther4 hearing and a
new trial due to ineffective assistance of counsel. Defendant claimed that trial counsel failed to
object to Massey’s identification of defendant, the admission of the video footage, and defendant’s
criminal history being provided to the jury. Defendant also alleged that trial counsel failed to
properly cross-examine the witnesses and failed to “argue key points in the case which would have
led to an acquittal.”
In response, the prosecution asserted that defendant was not entitled to an evidentiary
hearing to develop his claims for ineffective assistance of counsel because defendant failed to
demonstrate that any further factual development of the record would advance his claims. And, in
any event, defendant had not satisfied his dual burden of establishing ineffective assistance of
counsel under Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
The trial court held a hearing on defendant’s motion and subsequently denied it in a written
opinion. The court determined that defendant failed to rebut the presumption that his trial counsel
was effective. Counsel’s decisions were tactical and defendant failed to demonstrate that trial
counsel’s performance was deficient. Nor did defendant demonstrate that there was a reasonable
probability that the result of his trial would have been different but for trial counsel’s alleged
failings. The trial court also rejected defendant’s claim that he was entitled to an evidentiary
hearing because defendant had not shown that further factual development of the record was
3
Unbeknownst to defendant’s jury, Massey was defendant’s parole officer.
4
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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necessary to advance his claims. On reconsideration, the court agreed that it erred on a procedural
ground in resolving defendant’s motion, but reached the same result.
II. STANDARD OF REVIEW
“[A] trial court’s decision whether to hold an evidentiary hearing is reviewed for an abuse
of discretion.” People v Unger, 278 Mich App 210, 216-217; 749 NW2d 272 (2008). We also
review for an abuse of discretion “the trial court’s decision to deny defendant’s motion for a new
trial.” People v Schrauben, 314 Mich App 181, 187; 886 NW2d 173 (2016). “An abuse of
discretion occurs when the court chooses an outcome that falls outside the range of reasonable and
principled outcomes.” Unger, 278 Mich App at 217. Because a Ginther hearing was not held, our
“review is limited to errors apparent on the record.” People v Jordan, 275 Mich App 659, 667;
739 NW2d 706 (2007). Moreover, “[t]he questions presented by a claim of ineffective assistance
of counsel are mixed questions of law and fact; findings of fact by the lower court are reviewed
for clear error, and questions of constitutional law are reviewed de novo.” People v Aspy, 292
Mich App 36, 45; 808 NW2d 569 (2011). “A finding is clearly erroneous if the reviewing court
is left with a definite and firm conviction that a mistake has been made.” People v Lopez, 305
Mich App 686, 693; 854 NW2d 205 (2014) (quotation marks and citation omitted).
III. ANALYSIS
Defendant argues the trial court erred when it denied his motion for a Ginther hearing
because he set forth additional facts that required development of the record on the issue of whether
counsel was ineffective. We disagree.
A trial court’s decision to deny a Ginther hearing is not an abuse of discretion when a
“defendant has not set forth any additional facts that would require development of a record to
determine if defense counsel was ineffective . . . .” People v Williams, 275 Mich App 194, 200;
737 NW2d 797 (2007). “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. To
prevail on a claim of ineffective assistance of counsel, defendant must satisfy Strickland’s two-
part test. See People v Trakhtenberg, 493 Mich 38, 51-52; 826 NW2d 136 (2012). Defendant
“must show that (1) counsel’s performance fell below an objective standard of reasonableness and
(2) but for counsel’s deficient performance, there is a reasonable probability that the outcome
would have been different.” Id. at 51.
“Effective assistance of counsel is presumed, and . . . defendant bears [the] heavy burden
of proving otherwise.” People v Johnson, 315 Mich App 163, 174; 889 NW2d 513 (2016)
(quotation marks and citation omitted). “[D]efendant must also overcome a strong presumption
that his counsel’s decisions were the result of sound trial strategy.” Id. “[D]ecisions regarding
what evidence to present, what evidence to highlight during closing argument, whether to call
witnesses, and how to question witnesses are presumed to be matters of trial strategy.” People v
Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015). “This Court does not second-guess
counsel on matters of trial strategy, nor does it assess counsel’s competence with the benefit of
hindsight.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Finally, “[c]ounsel
is not ineffective for failing to make a futile objection.” See People v Thomas, 260 Mich App 450,
457; 678 NW2d 631 (2004).
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A. FAILURE TO OBJECT TO SECURITY CAMERA VIDEO FOOTAGE
Defendant argues his counsel was ineffective for failing to object to the admission of the
video surveillance footage. Defendant explains that the video, which was missing slightly over
three minutes of footage, “showed the video had been tampered with” and “counsel should have
moved to suppress [it] because [the] purported ‘glitch’ rendered it unreliable.” Defendant also
alleges that counsel’s failures deprived defendant of a substantial defense because the glitch
allowed the prosecution to present “a false narrative of some sort of interaction between” the victim
and defendant that never occurred. We disagree.
During trial, Detroit Police Department Detective Antonio Carlisi testified that he compiled
the video played for the jury at trial by combining footage from multiple surveillance cameras at
the Citgo and other businesses along the route driven by the victim. Detective Carlisi explained
that the footage from Citgo’s front-angle camera, which was part of Project Green Light,5 was
missing approximately three minutes. More specifically, a technical “glitch” caused the recording
to jump from 3:59:32 to 4:02:28 p.m. Even so, footage from a separate Citgo side-angle security
camera was uninterrupted. In other words, the three minutes absent from the front-angle camera
was captured by the side-angle camera, albeit not in color or in high definition. The side-angle
camera footage showed that the Equinox initially pulled into the Citgo parking lot at 3:59:43 p.m.
as the victim and Gray were seated inside the Tahoe. This was the first time defendant and his
passengers were at the Citgo. And although the victim’s Tahoe was in the parking lot, no encounter
occurred. Instead, the side-angle footage showed the victim walking toward the convenience store
as defendant and his companions were in the process of leaving. Once the victim entered the store,
the Equinox left before returning about two- and one-half minutes later. At that point, the victim
was already inside the store and the interaction that the victim reported to Gray occurred when the
victim was leaving the store and defendant was entering it.
Outside of defendant’s conclusory assertion of tampering with the front-angle camera,
defendant offers nothing to show that the video with the glitch was intentionally altered. Nor does
defendant cite any authority that the video footage would have been inadmissible due to this
technical glitch when it otherwise accurately captured what occurred. See People v Hack, 219
Mich App 299, 308-310; 556 NW2d 187 (1996). Therefore, defendant has not carried his burden
of showing that trial counsel performed deficiently by failing to object to the front-angle video
being admitted as evidence during trial or by failing to move for its suppression. See People v
Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999) (“[D]efendant has the burden of establishing the factual
predicate for his claim of ineffective assistance of counsel[.]”); Thomas, 260 Mich App at 457(“Counsel is not ineffective for failing to make a futile objection.”). Nor has defendant shown that
there was a reasonable probability the outcome of trial would have been different had counsel
objected to the front-angle video footage given that the separate side-angle camera captured what
occurred when the front-angle camera faltered. Furthermore, the prosecution never misrepresented
that an encounter between the victim and defendant occurred during the “glitch;” instead, the
5
The city and business owners agree to have video surveillance cameras that have real-time
connection that the city and police can view.
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prosecution maintained that the encounter between the victim and defendant occurred when the
victim exited and defendant entered the Citgo store.
Defendant further argues counsel was ineffective for failing to “obtain pertinent video
surveillance from inside the gas station.” Again, “defendant has the burden of establishing the
factual predicate for his claim of ineffective assistance of counsel[.]” Hoag, 460 Mich at 6. In
this case, defendant recognized in his affidavit that Detective Carlisi testified that he recovered
camera footage from inside the Citgo. The record also reflected that defendant and counsel signed
pretrial orders declaring: “[t]he Prosecutor and Defense Counsel represent that all pretrial motions
and discovery have been completed . . . .” During a pretrial hearing, defense counsel told the court
that the parties were “in agreement that there’s no video recording of a confrontation inside the
store” and that he saw no interaction on the video. Consequently, defendant failed to demonstrate
that trial counsel performed deficiently by not introducing into evidence the in-store video
footage.6 Id.B. FAILURE TO OBJECT AND TO MOVE FOR A MISTRIAL
Defendant argues that counsel was ineffective for failing to object and request a mistrial
when the trial court incorrectly informed the jury about defendant’s criminal history. More
specifically, during jury selection, the trial court read the Information pertaining to the felon-in-
possession charge, stating that defendant “did possess or transport a firearm when ineligible to do
so because he had been convicted of murder -- because he had been convicted of a felony . . . .”
Although the trial court did state that defendant had been convicted of murder, it immediately
amended its statement to “convicted of a felony.” The trial court further instructed the jury that
the Information was “not evidence.” And, during trial, the parties stipulated that defendant “had
been previously convicted of a specified felony” and the trial court instructed the jury to base its
decision on properly admitted evidence. “Jurors are presumed to follow their instructions[.]”
People v Zitka, 335 Mich App 324, 348; 966 NW2d 786 (2020) (quotation marks and citation
omitted).
Because the trial court swiftly corrected its error, we conclude that defense counsel was
not ineffective for failing to object. Indeed, an objection by counsel would have resulted in the
same outcome—the court would have corrected the word “murder” to “felony.” Additionally, an
objection from counsel may have further drawn the jury’s attention to the word “murder,” and
therefore, it may have been counsel’s strategy to remain silent so as to not draw additional attention
to the court’s error, especially considering the court’s own timely correction and instruction. See
Unger, 278 Mich App at 242 (“declining to raise objections . . . can often be consistent with sound
6
To the extent defendant suggests counsel was ineffective for failing to present the in-store video,
this argument was not included in defendant’s statement of questions presented, and, therefore, is
unpreserved. MCR 7.212(C)(5). In any event, this Court presumes “decisions regarding what
evidence to present . . . [are] matters of trial strategy.” Putman, 309 Mich App at 248. Defendant
has not rebutted this presumption, and, given the evidence presented, defendant has not shown that
there is a reasonable probability that presenting the in-station videotape would have resulted in a
different outcome at trial.
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trial strategy”). In any event, defendant has not shown that there was a reasonable probability that
the outcome of the trial would have been different if counsel had objected or moved for a mistrial
in light of the court’s curative actions and instructions and the evidence presented.
C. FAILURE TO CROSS-EXAMINE AND OBJECT TO IDENTIFICATION TESTIMONY
Defendant contends counsel was ineffective for failing to cross-examine Massey. In his
affidavit, defendant stated that he asked trial counsel to cross-examine “the prosecution’s witness,”
but counsel did not. On appeal, defendant asserts that his meetings with Massey only lasted for “a
matter of minutes” and that counsel should have cross-examined Massey to establish “the brevity
of their interaction” to challenge the reliability of her identification.
At the preliminary examination, Massey testified that she became defendant’s parole agent
in October 2017 and met with him monthly for a maximum of ten minutes. At trial, Massey
testified that she had known defendant since October 2017, and interacted with him
“[a]pproximately five to seven times.” Massey identified defendant in the videotape and
photographic stills therefrom due to his distinctive smile. While defense counsel did not cross-
examine Massey, “decisions regarding . . . how to question witnesses are presumed to be matters
of trial strategy.” Putman, 309 Mich App at 248. And defendant has not shown that trial counsel’s
performance fell below an objective standard of reasonableness or that there was a reasonable
probability the outcome of his trial would have been different had his counsel cross-examined
Massey in light of the videotape and still photographic evidence presented at trial depicting
defendant as the driver of the Equinox owned by his mother.
Defendant also argues that counsel was ineffective for failing to object to Massey’s
identification testimony. More specifically, defendant asserts that Massey’s identification
testimony “invaded the province of the jury.”
A lay witness’s “testimony in the form of opinions or inferences is limited to those opinions
or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a
clear understanding of the witness’ testimony or the determination of a fact in issue.” MRE 701.
And a lay witness’s testimony identifying a witness via a photograph or video is admissible where
there is “reason to believe that the witness is more likely to identify correctly the person than is
the jury.” People v Fomby, 300 Mich App 46, 52; 831 NW2d 887 (2013) (quotation marks and
citation omitted). The record demonstrates that Massey’s identification of defendant was
admissible under MRE 701 because she repeatedly saw defendant over the course of several
months during their professional relationship and there was reason to believe she was more likely
to correctly identify defendant than the jurors. Fomby, 300 Mich App at 52. Thus, counsel was
not ineffective for failing to make a futile objection. Thomas, 260 Mich App at 457. And, even if
we had concluded counsel’s performance had been deficient, defendant failed to demonstrate that
he was prejudiced in light of Gray’s testimony and the compelling video footage admitted during
trial.
D. FAILURE TO ARTICULATE A KEY POINT DURING CLOSING ARGUMENT
Defendant alleges that counsel was ineffective for failing to “argue the key points in the
case which would have led to an acquittal.” In his affidavit, defendant alleged his trial counsel
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failed to specifically argue points regarding “motive” and defendant’s placement at the scene of
the crime. Moreover, counsel failed to assert “that the defendant never was in possession or never
had a firearm discharged from his vehicle” consistent with the forensic analysis performed on the
Equinox. On appeal, however, defendant raises only the claim that trial counsel failed to argue
the evidence showing that he “was never in possession of a firearm and no firearm was fired from
his Equinox, which is consistent with forensic analysis.”7
The record does not support this claim. During closing argument, defense counsel stated:
“[T]he analysis of the [Equinox] . . . was [that it was] nice and clean inside and there was no
evidence of any crime found in it.” Additionally, counsel observed: “[I]n that video you don’t see
anybody with their arm out the window shooting at the car driven by [the victim]. None of that’s
recorded here.” Because defendant failed to establish the factual predicate for his claim, he is not
entitled to relief. Hoag, 460 Mich at 6. To the extent that defendant argues trial counsel’s remarks
were “generic” and “never emphasiz[ed] the point,” counsel’s decisions regarding the evidence
highlighted during closing argument are presumed to be a matter of trial strategy. Putnam, 309
Mich App at 248. In light of the arguments delineated above, defendant has not demonstrated that
counsel’s performance was deficient or that he was prejudiced. Id.
E. FAILURE TO OBJECT THE AIDING-AND-ABETTING JURY INSTRUCTION
Defendant argues that counsel was ineffective for failing to object to the jury instruction
on aiding and abetting solely as it relates to his felon-in-possession and felony-firearm charges. In
7
For the sake of completeness, we address defendant’s now-abandoned claims regarding counsel’s
closing argument as it pertained to defendant’s lack of motive and lack of presence during the
shooting.
After the prosecution submitted that motive had been established by evidence of the “stare
down,” defense counsel argued the only evidence of this was Gray’s testimony that the victim told
Gray “somebody was being on a tip in there,” “[w]hatever that means.” Defense counsel then
argued despite this “street lingo,” Gray “never [said] who it [was] that [the victim] ha[d] the beef
with inside.” And that “seven seconds [was] not enough time for all of that to occur.” Counsel
further reminded the jury that Massey identified defendant by referencing his distinct smile and
questioned whether defendant was the one engaged in the stare down Gray described, adding:
“Well, if a guy is smiling where is an intent to kill? Where is some big chip on his shoulder that
he wants to end the life of another human being or put them in danger of losing their life? Commit
an assault with the intent to murder? There’s none of that.”
Regarding defendant’s presence at the scene of the crime, defense counsel argued that it
was understandable that his phone records put defendant in the cell-phone servicing zone because
he lived near the Citgo and the crash site. Counsel posited that if there were cameras at Greenfield
and Grand River, they would have shown defendant continuing onto his home, and, in fact,
defendant was checking his voice messages shortly after the shooting. Counsel remarked that it
would “be equally reasonable to believe that a man who lives in that area . . . went to . . . where he
lives and was there when this horrible tragedy occurred.” And counsel asserted that the “most
logical thing . . . is that he [was] back at [his home] by the time all of this [took] place.”
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his brief in support of his motion for a Ginther hearing, appellate counsel asserted “there can be
no sound trial strategy” when failing to object because an “umbrella instruction” is insufficient,
citing to Rosemond v United States, 572 US 65; 134 S Ct 1240; 188 L Ed 2d 248 (2014). In
Rosemond, the United States Supreme Court held that to establish the federal crime of aiding and
abetting the using or carrying of a firearm during and in relation to any crime of violence or drug
trafficking crime under 18 USC 2 and 18 USC 924(c), the government bore the burden of proving
“that the defendant actively participated in the underlying drug trafficking or violent crime with
advance knowledge that a confederate would use or carry a gun during the crime’s commission.”
Id. at 67. This case, however, is rooted in Michigan’s felony-firearm statute, MCL 750.227b, and
our Supreme Court has held “aiding and abetting the commission of a felony-firearm is no different
from aiding and abetting the commission of any other felony.” People v Moore, 470 Mich 56, 69;
679 NW2d 41 (2004). Accordingly, counsel was not ineffective for failing to raise a futile
objection when instructing the jury on aiding and abetting principles as to the felony-firearm
charges in general. Thomas, 260 Mich App at 457.
On appeal, however, defendant cites to United States v Gardner, 488 F3d 700 (CA 6, 2007),
a case that he failed to bring to the trial court’s attention. The defendant in Gardner was convicted
of aiding and abetting a felon in possession of a firearm under federal law, arising out of a reverse-
buy scenario, where three codefendants, including Gardner, plotted to take the cocaine at gunpoint.
Id. at 706, 708-709, 713. Gardner was the only defendant charged with being a felon-in-possession
and the government offered both principal and aider-and-abettor theories of liability; ultimately,
however, the verdict form reflected that the jury convicted Gardner as an aider and abettor. Id. at
709, 714. Recognizing a split among the federal circuit courts, the Sixth Circuit concluded that to
be convicted as an aider-and-abettor of felon-in-possession under 18 USC 922(g), the prosecution
was required to prove “that the aider and abettor knew or should have known that the
principal . . . was a convicted felon.” Id. at 714-715.
As a decision of an intermediate appellate court, Gardner is not binding on this Court, see
People v Frazier, 478 Mich 231, 242 n 8; 733 NW2d 713 (2007), and, in fact, Gardner recognized
that the circuit courts are divided on the question of whether an aider and abettor must know about
his principal’s status. In response, the prosecution relies on People v Minch, 493 Mich 87, 93-94;
825 NW2d 560 (2012), which reasoned that an agent of a felon-in-possession could aid and abet
him in that crime. However, we need not resolve this issue because, assuming arguendo that
counsel performed deficiently by failing to specifically object to the aiding-and-abetting
instruction pertaining to the felon-in-possession charge and its accompanying felony-firearm
charge, defendant has not established he was prejudiced. As defendant recognizes, there was no
evidence that any of defendant’s companions were prohibited from using a firearm because they
had been convicted of a felony. Considering the trial court’s aiding and abetting instructions, the
jury must have concluded that defendant, the lone occupant of the vehicle stipulated to be a
convicted felon, actually possessed the firearm or constructively possessed it.
F. CONCLUSION
In sum, defendant failed to meet his dual burden of establishing that trial counsel’s
performance fell below an objective standard of reasonableness and that there was a reasonable
probability that, but for his counsel’s deficient performance, the outcome of trial would have been
different. Defendant also failed to offer proof or additional facts outside of the record to support
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the necessity of an evidentiary hearing, and thus, the trial court did not abuse its discretion when
it denied defendant’s motion for a Ginther hearing.
Affirmed.
/s/ Anica Letica
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
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