People of Michigan v. Dannie Beal III

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 1, 2016
Plaintiff-Appellee,
v No. 326981
Wayne Circuit Court
DANNIE BEAL III, LC No. 14-010716-FH
Defendant-Appellant.
Before: GADOLA, P.J., and WILDER and METER, JJ.
PER CURIAM.
Defendant, Dannie Beal III,1 was convicted by a jury of possession with intent to deliver
less than 50 grams of a mixture containing cocaine (possession-with-intent-to-deliver), MCL
333.7401(2)(a)(iv); felon in possession of a firearm (felon-in-possession), MCL 750.224f;
carrying a concealed weapon (CCW), MCL 750.227; and possession of a firearm during the
commission of a felony (felony-firearm), second offense, MCL 750.227b. Defendant was
sentenced as a fourth-offense habitual offender, MCL 769.12, to 3 to 40 years’ imprisonment for
his possession-with-intent-to-deliver conviction, two to five years’ imprisonment for his felon-
in-possession conviction, two to five years’ imprisonment for his CCW conviction, and five
years’ imprisonment, with credit for 25 days served, for his felony-firearm conviction. The trial
court ordered that the felony-firearm sentence be served before and consecutively to the
possession-with-intent-to-deliver, felon-in-possession, and CCW sentences, which were ordered
to be concurrent with each other. Defendant now appeals as of right. We remand to the trial
court to amend the judgment of sentence to reflect that defendant’s CCW sentence is concurrent
with his felony-firearm sentence. We affirm in all other respects.
Defendant first argues that the trial court erred by denying his motion to suppress the
evidence obtained from the search warrant. We disagree.
Defendant preserved this issue for appeal by moving the trial court to quash the search
warrant on the same grounds raised on appeal. See People v Metamora Water Serv, Inc, 276
1
Defendant is also referred to as Dannie Beal II in various places throughout the record. His
official name appears to be Dannie Beal III, at least for purposes of the instant court proceedings.
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Mich App 376, 382; 741 NW2d 61 (2007). “We review de novo a trial court’s ultimate
determination on a motion to suppress and its factual findings for clear error.” People v Mullen,
282 Mich. App. 14, 21; 762 NW2d 170, 174 (2008) (citations omitted). “A finding is clearly
erroneous when, although there is evidence to support it, the reviewing court is left with a
definite and firm conviction that a mistake has been made.” Id. at 22 (quotation marks and
citation omitted).
The Fourth Amendment of the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized. [US Const, Am IV; see also Const 1963, art 1, § 11.]
“Probable cause to issue a search warrant exists where there is a ‘substantial basis’ for inferring a
‘fair probability’ that contraband or evidence of a crime will be found in a particular place.”
People v Kazmierczak, 461 Mich. 411, 417-418; 605 NW2d 667 (2000) (citation omitted).
“Probable cause does not require certainty.” Mullen, 282 Mich. App. at 27 (quotation marks and
citations omitted). Instead, there is probable cause to search “ ‘when facts and circumstances
warrant a reasonably prudent person to believe that a crime has been committed and that the
evidence sought will be found in a stated place.’ ” Id., quoting People v Brzezinski, 243 Mich
App 431, 433; 622 NW2d 528 (2000).
“A defendant has the right to challenge the truthfulness of an affidavit’s factual
statements . . . .” People v Waclawski, 286 Mich. App. 634, 701; 780 NW2d 321 (2009).
However, “[t]he defendant has the burden of showing, by a preponderance of the evidence, that
the affiant knowingly and intentionally, or with a reckless disregard for the truth, inserted false
material into the affidavit and that the false material was necessary to the finding of probable
cause.” Id. As the United States Supreme Court stated:
There is, of course, a presumption of validity with respect to the affidavit
supporting the search warrant. To mandate an evidentiary hearing, the
challenger’s attack must be more than conclusory and must be supported by more
than a mere desire to cross-examine. There must be allegations of deliberate
falsehood or of reckless disregard for the truth, and those allegations must be
accompanied by an offer of proof. They should point out specifically the portion
of the warrant affidavit that is claimed to be false; and they should be
accompanied by a statement of supporting reasons. Affidavits or sworn or
otherwise reliable statements of witnesses should be furnished, or their absence
satisfactorily explained. Allegations of negligence or innocent mistake are
insufficient. The deliberate falsity or reckless disregard whose impeachment is
permitted today is only that of the affiant, not of any nongovernmental informant.
Finally, if these requirements are met, and if, when material that is the subject of
the alleged falsity or reckless disregard is set to one side, there remains sufficient
content in the warrant affidavit to support a finding of probable cause, no hearing
is required. On the other hand, if the remaining content is insufficient, the
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defendant is entitled, under the Fourth and Fourteenth Amendments, to his
hearing. Whether he will prevail at that hearing is, of course, another issue.
[Franks v Delaware, 438 U.S. 154, 171-172; 98 S. Ct. 2674; 57 L. Ed. 2d 667
(1978).]
Review of a trial court’s determinations on witness credibility at a suppression hearing is
deferential:
“This Court will not disturb a trial court’s ruling at a suppression hearing unless
that ruling is found to be clearly erroneous. Resolution of facts about which there
is conflicting testimony is a decision to be made initially by the trial court. The
trial judge’s resolution of a factual issue is entitled to deference. This is
particularly true where a factual issue involves the credibility of the witnesses
whose testimony is in conflict.” [People v Geno, 261 Mich. App. 624, 629; 683
NW2d 687 (2004), quoting People v Burrell, 417 Mich. 439, 448; 339 NW2d 403
(1983).]
Here, the trial court concluded that the affidavit for the search warrant was valid because
it credited Officer Ray Berry’s testimony and found that defendant’s conflicting testimony was
not credible and “sounded false.” The trial court’s finding is entitled to deference on appellate
review. See Geno, 261 Mich. App. at 629. Officer Berry testified that he had an unobstructed
view of the transactions occurring at the side door of the house for which the search warrant was
obtained and that he recovered a substance that tested positive for cocaine from one of the
individuals he saw engage in one of these transactions with defendant. The fact that Officer
Berry did not describe in the affidavit whether he observed particular transactions from his
vehicle or while on foot does not diminish the fact that he witnessed the transactions; that detail
does not affect whether a reasonably prudent person would believe that a crime had been
committed and that the evidence sought would be found in a stated place. Mullen, 282 Mich
App at 27. Certainty is not required to establish probable cause. Id. There is insufficient
evidence on this record that could lead to the definite and firm conviction that the trial court
made a mistake by crediting Officer Berry’s testimony. See id. at 22. Consequently, it was not
clearly erroneous for the trial court to find that defendant failed to meet his burden of
demonstrating that “the affiant knowingly and intentionally, or with a reckless disregard for the
truth, inserted false material into the affidavit and that the false material was necessary to the
finding of probable cause.” See Waclawski, 286 Mich. App. at 701; see also Mullen, 282 Mich
App at 22. Considering the facts and circumstances included in the affidavit, a reasonably
prudent person would be justified in believing that defendant was selling illegal narcotics from
the house and that evidence of such criminal activity would be found inside. See Mullen, 282
Mich. App. at 27. Therefore, the trial court did not err by denying defendant’s motion to quash
the search warrant and suppress the evidence obtained from the search. Id. at 21.
Next, defendant argues that the trial court erred by ordering his CCW sentence to be
served consecutively to his felony-firearm sentence rather than ordering the two sentences to be
served concurrently, because such a consecutive sentence is not authorized by statute. We agree.
“To preserve a sentencing issue for appeal, a defendant must raise the issue at sentencing,
in a proper motion for resentencing, or in a proper motion to remand filed in the [C]ourt of
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[A]ppeals.” People v Clark, ___ Mich App ___, ___; ___ NW2d ___ (2016); slip op at 2-3
(quotation marks and citations omitted). Here, defendant did not preserve this issue because he
did not raise it in the trial court and did not move this Court for a remand. See id. Therefore, our
review is for plain error affecting substantial rights. See People v Carines, 460 Mich. 750, 763-
764; 597 NW2d 130 (1999). On plain-error review, the defendant has the burden to establish (1)
“error”; (2) that was “plain,” meaning “clear or obvious”; and (3) prejudice, meaning “that the
error affected the outcome of the lower court proceedings.” Id. at 763. If all three requirements
are met, then we may decide to reverse, but reversal is only justified when the defendant is
actually innocent or the error significantly impacted “the fairness, integrity, or public reputation
of judicial proceedings . . . .” Id. (quotation marks and citation omitted).
“It is well settled in Michigan that in the absence of statutory authority the imposition of
consecutive sentences is forbidden.” People v Chambers, 430 Mich. 217, 222; 421 NW2d 903
(1988). The felony-firearm statute, MCL 750.227b, provides, in relevant part:
(1) A person who carries or has in his or her possession a firearm when he
or she commits or attempts to commit a felony, except a violation of section 223,
227, 227a, or 230, is guilty of a felony and shall be punished by imprisonment for
2 years. Upon a second conviction under this subsection, the person shall be
punished by imprisonment for 5 years. Upon a third or subsequent conviction
under this subsection, the person shall be punished by imprisonment for 10 years.
* * *
(3) A term of imprisonment prescribed by this section is in addition to the
sentence imposed for the conviction of the felony or the attempt to commit the
felony and shall be served consecutively with and preceding any term of
imprisonment imposed for the conviction of the felony or attempt to commit the
felony.
“From the plain language of the felony-firearm statute, it is evident that the Legislature intended
that a felony-firearm sentence be consecutive only to the sentence for a specific underlying
felony.” People v Clark, 463 Mich. 459, 463; 619 NW2d 538 (2000). “No language in the
statute permits consecutive sentencing with convictions other than the predicate offense.” Id. at
464. The felony of CCW, codified in MCL 750.227, cannot be the underlying felony for a
felony-firearm conviction because it is one of the four offenses specifically exempted from being
a predicate felony for a felony-firearm conviction. See People v Mitchell, 456 Mich. 693, 696,
698; 575 NW2d 283 (1998). Related to the specific issue defendant raises in the instant case,
this Court has previously explained:
Under MCL 750.227b(1); MSA 28.424(2)(1), a defendant is not guilty of felony-
firearm if the underlying felony is the carrying of a concealed weapon. Although
the presence of a second underlying felony allows defendant’s felony-firearm
conviction to stand, it follows that the felony-firearm sentence may run
consecutively only to that second underlying felony. [People v Cortez, 206 Mich
App 204, 207; 520 NW2d 693 (1994) (citation omitted).]
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In other words, “[b]ecause there is no statute mandating that a sentence for a CCW conviction
run consecutively to a sentence for a felony-firearm conviction, the sentence should run
concurrently.” People v McCrady, 213 Mich. App. 474, 486; 540 NW2d 718, 724 (1995).
Here, defendant has shown that the trial court plainly erred by ordering his felony-firearm
sentence to be consecutive to his CCW sentence. We remand to the trial court for the judgment
of sentence to be amended to reflect that defendant’s felony-firearm sentence is concurrent with
his CCW sentence.
Next, we address the issues raised by defendant in his Standard 4 brief.
First, defendant appears to argue that his Sixth Amendment right to confront the
witnesses against him was violated because (1) he was not given the opportunity to cross-
examine the individual involved in the fourth transaction with defendant that Officer Berry
described in the search warrant affidavit and who was subsequently arrested by Officer Berry
(hereinafter “customer 4”), and (2) he was not given the opportunity to cross-examine a police
laboratory analyst, an Officer Harris, who tested the substance recovered from customer 4 and
who was referenced in the search warrant affidavit and Officer Berry’s testimony about the
affidavit. We disagree.
A defendant fails to preserve a Confrontation Clause issue for appellate review if “he did
not object on the same basis in the trial court.” People v Henry (After Remand), 305 Mich. App.
127, 152; 854 NW2d 114 (2014). Here, defendant did not preserve this issue because he never
made any objections related to statements by these two witnesses on Confrontation Clause
grounds. See id. “Whether defendant was denied his right of confrontation involves a question
of constitutional law that we review de novo.” Id. However, “[w]e review unpreserved
constitutional issues for plain error affecting defendant’s substantial rights.” Id.
The Confrontation Clause of the United States Constitution provides, “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him . . . .” US Const, Am VI; see also Const 1963, art 1, § 20. Under the Sixth Amendment,
testimonial statements of a witness absent from trial may only be admitted at trial if the declarant
is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v
Washington, 541 U.S. 36, 59, 68; 124 S. Ct. 1354; 158 L. Ed. 2d 177 (2004). However, “the
Confrontation ‘Clause . . . does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.’ ” People v McPherson, 263 Mich. App. 124, 133;
687 NW2d 370 (2004), quoting Crawford, 541 U.S. at 59 n 9 (citation omitted). “[A] statement
offered to show the effect of the out-of-court statement on the hearer does not violate the
Confrontation Clause” and “a statement offered to show why police officers acted as they did is
not hearsay.” People v Chambers, 277 Mich. App. 1, 11; 742 NW2d 610 (2007).
Here, although it appears from defendant’s phrasing of the question presented that his
argument is based on the Confrontation Clause, he does not cite any authority relevant to
supporting his Confrontation Clause argument. “An appellant may not merely announce his
position and leave it to this Court to discover and rationalize the basis for his claims, nor may he
give only cursory treatment with little or no citation of supporting authority.” People v Kelly,
231 Mich. App. 627, 640-641; 588 NW2d 480 (1998). An issue is abandoned if an appellant
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“fail[s] to properly address the merits of his assertion of error . . . .” People v Harris, 261 Mich
App 44, 50; 680 NW2d 17 (2004). Therefore, defendant has abandoned this issue.
Further, addressing the merits of defendant’s argument briefly, we find no clear or
obvious error. Carines, 460 Mich. at 763. The statement of customer 4, who stated that he
“knew [he] shouldn’t have [bought drugs] from that spot,” was introduced as part of showing
what Officer Berry did in order to obtain the search warrant. Thus, the statement’s introduction
did not violate the Confrontation Clause. See Chambers, 277 Mich. App. at 10-11 (finding no
Confrontation Clause violation where “the lead detective testified that he received a telephone
call from an FBI agent who told him that one of the agent’s informants recognized the man in the
still photographs as defendant” because “[t]he testimony was not offered to establish the truth of
the informant’s tip” but instead “was offered to establish and explain why the detective
organized a surveillance of defendant’s home and how defendant came to be arrested”); see also
McPherson, 263 Mich. App. at 131, 133-134 (finding no Confrontation Clause violation where
evidence of an out-of-court statement “was not admitted for its substance (to identify [the
defendant as] the shooter),” but to show that the defendant was aware of the statement, had
“changed his story several times,” and was not credible). Defendant has further failed to
demonstrate prejudice resulting from any conceivable error. Carines, 460 Mich. at 763. We
note that defendant was charged with possession with intent to deliver cocaine based on the
cocaine that was discovered in the house during the search; substantial evidence supported his
conviction, which did not hinge on the statement from customer 4 that Officer Berry heard
before obtaining the search warrant.
Defendant’s argument does not appear to be a challenge to the validity of the search
warrant or the search warrant affidavit. However, to the extent that defendant’s argument could
be understood as a claim that customer 4 should have been produced as an “informant” on whose
statement Officer Berry relied in securing the search warrant, defendant’s argument also fails.
“[G]enerally the people are not required to disclose the identity of confidential informants;
however, where the disclosure of an informer’s identity is relevant and helpful to the defense of
an accused, or is essential to a fair determination of a cause, the identity must be disclosed[.]”
People v Tanner, 222 Mich. App. 626, 630 n 1; 564 NW2d 197 (1997). Here, defendant has made
no allegations that customer 4 possessed exculpatory evidence; rather, he merely argues that
customer 4 should have been made available “for impeachment purposes.” Thus, defendant has
not shown how the identity and testimony of customer 4 would have been “relevant and helpful”
to his defense or “essential to a fair determination of a cause . . . .” See id. Defendant, as the
appellant, bears “the burden of furnishing the reviewing court with a record to verify the factual
basis of any argument upon which reversal [is] predicated.” People v Elston, 462 Mich. 751,
762; 614 NW2d 595 (2000).
Next, to the extent that defendant’s argument could be understood as a claim that the
failure to produce customer 4 constituted a Brady2 violation, defendant’s argument also fails.
“The prosecution’s failure to disclose exculpatory or material evidence in its possession
constitutes a due process violation regardless of whether a defendant requested the evidence.”
2
Brady v Maryland, 373 U.S. 83; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963).
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Henry (After Remand), 305 Mich. App. at 157. “[U]ndisclosed evidence will be deemed material
only if it could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Id. (quotation marks and citations omitted). Here, as
discussed above, defendant has not demonstrated that customer 4 would have provided any
exculpatory information, much less information that would undermine confidence in the verdict.
See id. No Brady violation occurred in this case. See id. (holding that no Brady violation
occurred where the defendant did not “articulate how calling the informant at trial would have
affected the outcome of the proceedings”).
In sum, defendant has not shown any error, much less plain error, based on the fact that
customer 4 was not required to testify. See Carines, 460 Mich. at 763.
Additionally, defendant argues that Officer Harris, who tested the substance confiscated
from customer 4 that was determined to contain cocaine, should have been required to testify at
trial so defendant could cross-examine him. Even assuming error for purposes of argument,
defendant has failed to show that he was prejudiced. Indeed, he stipulated at trial to the fact that
the substance from the 23 plastic bags recovered from the house during the search tested positive
for the presence of cocaine; it was never disputed that the substance possessed was cocaine.
Thus, defendant has not shown that the outcome of the trial would have been different had he
been able to cross-examine Officer Harris, and he has failed to demonstrate plain error affecting
his substantial rights. See id.
To the extent that defendant’s argument regarding Officer Harris can be understood as a
challenge to the search warrant itself, this issue is also unpreserved and reviewed for plain error
because defendant did not challenge the warrant on these grounds in the trial court. See People v
Stimage, 202 Mich. App. 28, 30; 507 NW2d 778 (1993) (“[a]n objection based on one ground at
trial is insufficient to preserve an appellate attack based on a different ground”); Carines, 460
Mich. at 763-764. Defendant has failed to show that the outcome of the Franks3 hearing would
have been different had Officer Harris testified. Defendant offers no evidence that the test
results were inaccurate or that cross-examining Officer Harris would have somehow
demonstrated that the affidavit contained false material that was inserted intentionally and
knowingly or with reckless disregard for the truth; thus, he has not shown that the warrant would
have been quashed. See Waclawski, 286 Mich. App. at 701. Consequently, defendant has failed
to demonstrate plain error on this claim as well. See Carines, 460 Mich. at 763.
Next, defendant appears to claim that he received ineffective assistance of counsel based
on three different grounds. Defendant argues that defense counsel was ineffective for failing to
call particular witnesses, for failing to impeach Officer Berry with evidence of a separate lawsuit
filed against him, and for failing to confirm the accuracy of the photographs of the house that
was searched. We disagree.
3
Franks v Delaware, 438 U.S. 154; 98 S. Ct. 2674; 57 L. Ed. 2d 667 (1978).
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A defendant’s claim of ineffective assistance of counsel should be preserved by moving
the trial court for a new trial or an evidentiary hearing. People v Sabin (On Second Remand),
242 Mich. App. 656, 658; 620 NW2d 19 (2000). When there is no testimonial record, a claim of
ineffective assistance of counsel is unpreserved. People v Musser, 259 Mich. App. 215, 220-221;
673 NW2d 800 (2003). Here, defendant did not move the trial court for a new trial or an
evidentiary hearing. Thus, no testimonial record was made in the trial court, and defendant’s
claim of ineffective assistance of counsel is unpreserved. See Musser, 259 Mich. App. at 220.
“Unpreserved issues concerning ineffective assistance of counsel are reviewed for errors
apparent on the record.” People v Lockett, 295 Mich. App. 165, 186; 814 NW2d 295 (2012). “A
claim of ineffective assistance of counsel presents a mixed question of fact and constitutional
law.” People v Unger, 278 Mich. App. 210, 242; 749 NW2d 272 (2008). Factual findings, if any,
are reviewed for clear error, and questions of constitutional law are reviewed de novo. See id.
There are two primary components for establishing an ineffective-assistance-of-counsel
claim requiring reversal: the defendant must show, first, “that counsel’s performance was
deficient,” and second, that “the deficient performance prejudiced the defense.” Strickland v
Washington, 466 U.S. 668, 687; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). In other words, for a
defendant to demonstrate that defense counsel was constitutionally ineffective, the defendant
must show (1) “that counsel’s performance was below an objective standard of reasonableness
under prevailing professional norms,” and (2) “that there is a reasonable probability that, but for
counsel’s error, the result of the proceeding would have been different.” People v Stanaway, 446
Mich. 643, 687-688; 521 NW2d 557 (1994). “Effective assistance of counsel is presumed,” and
“[t]he defendant bears a heavy burden of proving otherwise.” People v Rockey, 237 Mich. App.
74, 76; 601 NW2d 887 (1999). “The defendant must overcome a strong presumption that
counsel’s assistance constituted sound trial strategy.” Stanaway, 446 Mich. at 687. “This Court
will not substitute its judgment for that of 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. A
“defendant has the burden of establishing the factual predicate for his claim of ineffective
assistance of counsel . . . .” People v Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999).
Defendant has not pointed to anything in the record that shows that he was denied the
effective assistance of counsel. First, defendant argues that defense counsel should have
requested that customer 4 and Officer Harris be required to testify. However, “[d]ecisions
regarding what evidence to present and whether to call or question witnesses are presumed to be
matters of trial strategy.” Rockey, 237 Mich. App. at 76. Furthermore, “[i]n general, the failure to
call a witness can constitute ineffective assistance of counsel only when it ‘deprives the
defendant of a substantial defense.’ ” People v Payne, 285 Mich. App. 181, 190; 774 NW2d 714
(2009), quoting People v Hoyt, 185 Mich. App. 531, 537–538, 462 NW2d 793 (1990). Defendant
was not deprived of a substantial defense. Defense counsel presented the theory that the
evidence linking the cocaine found by police to defendant was based on speculation and false
statements, and defense counsel’s strategy was clearly to cast doubt on the observations of
Officer Berry. Defense counsel attacked Officer Berry’s credibility by pointing to
inconsistencies in his testimony and the search warrant affidavit. Defense counsel also
emphasized that Officer Berry made assumptions without being certain of his conclusions; for
example, he did not know whether customer 4 had actually acquired the cocaine from
defendant’s house or before he visited that location. This theory was presented by defense
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counsel through cross-examination of Officer Berry and other police officers, and defense
counsel argued this theory during closing argument.
Moreover, when evaluating a claim of ineffective assistance of counsel, “a reviewing
court must conclude that the act or omission of the defendant’s trial counsel fell within the range
of reasonable professional conduct if, after affirmatively entertaining the range of possible
reasons for the act or omission under the facts known to the reviewing court, there might have
been a legitimate strategic reason for the act or omission.” People v Gioglio (On Remand), 296
Mich. App. 12, 22-23; 815 NW2d 589 (2012), vacated in part on other grounds 493 Mich. 864
(2012). In the instant case, if defense counsel had attempted to compel the production of
customer 4 to testify, even if such an attempt was successful, customer 4 might have clearly
identified defendant as the seller and undermined his defense. Thus, defense counsel’s strategy
was to cast doubt on the importance and certainty of the information relating to customer 4,
rather than to seek direct testimony from customer 4. “This Court will not second-guess counsel
on matters of trial strategy, nor will it assess counsel’s competence with the benefit of
hindsight.” People v Putman, 309 Mich. App. 240, 248; 870 NW2d 593 (2015) (quotation marks
and citation omitted).
Regarding Officer Harris, defendant does not provide any argument for why he would
have been entitled to compel the testimony of Officer Harris. Defendant has therefore
abandoned this argument. See Kelly, 231 Mich. App. at 640-641; Harris, 261 Mich. App. at 50.
Moreover, it was not defense counsel’s strategy to dispute whether the substances analyzed by
the police were actually cocaine, and defendant has not demonstrated that such a strategy was in
any way plausible. Defendant has not shown why the strong presumption that defense counsel’s
trial strategy was sound should give way in this case. See Stanaway, 446 Mich. at 687.
Defendant has not carried his burden of proving that defense counsel’s assistance was not
effective. See Rockey, 237 Mich. App. at 76.
Next, defendant argues that defense counsel was ineffective for not seeking to impeach
Officer Berry by referencing a lawsuit that allegedly was filed against him. Defendant states in
his brief that he warned defense counsel about this lawsuit, so it appears that defense counsel
was aware of this information and was able to make decisions about its potential usefulness.
“Decisions regarding whether to call or question a witness are presumed to be matters of trial
strategy.” Putman, 309 Mich. App. at 248. Here, defense counsel thoroughly cross-examined
Officer Berry and attempted to impeach his credibility by highlighting inconsistencies between
his testimony and the search warrant affidavit. Defense counsel’s trial strategy will not be
second-guessed by this Court. Id. Defendant’s mere assertion that evidence of this lawsuit
should have been used for impeachment purposes is not sufficient to “overcome [the] strong
presumption that counsel’s assistance constituted sound trial strategy,” and defendant has not
shown that defense counsel performed “below an objective standard of reasonableness under
prevailing professional norms.” See Stanaway, 446 Mich. at 687.
Next, defendant appears to argue that defense counsel should have testified that the
pictures of the house, which were used to challenge the search warrant affidavit at the Franks
hearing and submitted into evidence by defense counsel at trial, were actually pictures of the
house that was searched. Under the Michigan Rules of Professional Conduct (MRPC), “a lawyer
generally cannot simultaneously be a witness and an advocate at trial.” People v Petri, 279 Mich
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App 407, 417; 760 NW2d 882 (2008), citing MRPC 3.7(a). We have previously noted that the
purposes of this rule include, as relevant to the instant case, “prevent[ing] any problems that
would arise from a lawyer’s having to argue the credibility and the effect of his or her own
testimony” and “prevent[ing] prejudice to the opposing party that might arise therefrom . . . .”
People v Tesen, 276 Mich. App. 134, 143; 739 NW2d 689 (2007). Here, defense counsel could
not have testified about the pictures and served as defendant’s advocate. See MRPC 3.7(a);
Petri, 279 Mich. App. at 417. Therefore, defense counsel’s performance did not fall “below an
objective standard of reasonableness” in this regard. See Stanaway, 446 Mich. at 687.
Furthermore, defendant testified at the Franks hearing that the pictures accurately showed the
house that was searched; therefore, defendant has failed to demonstrate that he suffered any
prejudice. See Stanaway, 446 Mich. at 687-688.4
Finally, defendant requests in the alternative that this Court remand the case to the trial
court for a Ginther hearing. We deny this request for a remand because defendant has not
demonstrated that development of a factual record is required. MCR 7.211(C)(1)(a)(ii) requires
that a motion to remand “be supported by affidavit or offer of proof regarding the facts to be
established at a hearing.” Defendant failed to file a motion to remand in this Court, and he also
failed to attach any affidavits or make an offer of proof showing what facts would be established
at a hearing on remand. Therefore, defendant’s request for a Ginther hearing does not contain
the necessary supporting material for a proper motion to remand, even if we were to treat the
request in his Standard 4 brief as a motion to remand.
Remanded solely for the purpose of amending the judgment of sentence in accordance
with this opinion. We affirm in all other respects. We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
4
Even if defendant could somehow show that defense counsel’s performance was deficient for
any of the reasons asserted on appeal, he has failed to demonstrate prejudice. Indeed, defendant
has not provided any evidence of how the outcome of his trial would have been different—how
he would not have been convicted—had his defense counsel acted differently.
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