People of Michigan v. Myron Tyrone Williams ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 20, 2015
Plaintiff-Appellee,
v No. 321582
Wayne Circuit Court
MYRON TYRONE WILLIAMS, LC No. 13-009253-FC
Defendant-Appellant.
Before: BORRELLO, P.J., and JANSEN and OWENS, JJ.
PER CURIAM.
A jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), second-
degree murder, MCL 750.317, and unarmed robbery, MCL 750.530. At sentencing, the trial
court vacated the second-degree murder conviction and sentenced defendant to life in prison for
the felony-murder conviction and a concurrent prison term of 8 years’ and 4 months to 15 years’
for the unarmed robbery conviction. Defendant appeals as of right. For the reasons set forth in
this opinion, we affirm.
I. FACTS
Defendant’s convictions arise out of the May 15, 2013, murder of Sabrina Gianino. At
the time, Gianino lived with her boyfriend Bruce Hunsinger in the lower unit of a two-family flat
in Grosse Pointe Park. Defendant lived next door in his sister Tracy Davis’ attic with his wife
(Quashaunda Williams), his three children, and one step-child. Davis and Quashaunda testified
that they moved into the attic to avoid homelessness when defendant used the family’s rent
money for drugs and they were evicted. Defendant had been unemployed after being fired from
a truck driving job.
According to Quashaunda, defendant was addicted to crack cocaine before they were
married 10 years ago. Davis recalled that when defendant lived in Louisiana he was known to
steal items to exchange for crack cocaine. She also had jewelry that “came up missing” from her
home, but both defendant and her son had access to the home. Davis’ son, Cardell Williams,
testified that defendant was addicted to crack cocaine.
On May 15, 2013, defendant came home between 9:30 and 10:00 p.m. When the
children were asleep by around 9:30 or 9:45 p.m., Quashaunda dozed off with her headphones
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on. Quashaunda recalled that, at that time, defendant was still fully clothed and sitting on their
bed; she awoke at some point to go to the bathroom, but defendant was not there.
Hunsinger was working at Marge’s Bar and Grill that night approximately one mile from
Gianino’s home, from 5:00 to 11:00 p.m. While working, Hunsinger called Gianino between
10:30 and 10:45 p.m. He did not notice anything unusual with her demeanor. He said he would
be home late because work was busy and asked her to administer their cat’s medicine.
The neighbor who lived in the cottage behind Gianino, Robert Patrick Toole, noticed that
Gianino’s back door was open all evening. He did not hear any screaming or noises that
“sounded aggressive” between 10:30 and 11:30 p.m. However, Dawn Golden, who lived in the
flat above Gianino heard the back door of the lower flat slam around 11:00 p.m.; she too did not
hear any fighting or screaming.
According to Hunsinger’s supervisor James Depuys and acquaintance Marsha Clark,
Hunsinger left work around 11:15 or 11:20 p.m., and went to Detroit to buy marijuana from
Clark—arriving around 11:35 or 11:40 p.m.—and then returned to the bar shortly before
midnight. Hunsinger only stayed for 10 minutes and then went home.
Hunsinger arrived home at about 12:10 a.m., on May 16, 2013. He discovered Gianino
lying face down on the floor of a bedroom where the couple stored cat supplies. Hunsinger
spoke to Gianino and shook her shoulder, but she did not respond. Hunsinger called 911.
During the conversation, Hunsinger noticed an electrical cord tied around Gianino’s neck. When
police arrived, Hunsinger searched the home for anything that was missing and could not find
Gianino’s purse or bag with identification, money, and cards, Hunsinger’s laptop, Gianino’s
cellular phone, and an iPod. Although he did not notice it when the police were there, Hunsinger
later realized some jewelry was also missing.
Antonio Mitchell (a.k.a “Montana”), and his roommate Dora Cunningham, testified that
defendant, who they knew as “T.D.”, bought crack cocaine from them every other day for
several months. On May 15, 2013, between 11:00 p.m. and midnight, defendant knocked on the
door of Mitchell’s home on Alter Road and Mitchell let him inside. Mitchell testified that
defendant seemed “pretty normal, but he was . . . a little loud.” Defendant asked Mitchell if he
wanted to buy a laptop. Initially, Mitchell was reluctant to purchase it because he does not know
much about laptops, but he ultimately gave defendant $10 or $20 worth of crack cocaine for the
machine. Mitchell identified it at trial as Hunsinger’s laptop.
Mitchell ultimately asked defendant to leave because he was so loud. When defendant
left, Mitchell noticed an iPod and cellular phone next to the laptop that he had not seen before;
defendant had not mentioned these items to him. At trial, Mitchell identified these items among
those that had been taken from Hunsinger’s home.
Quashaunda was awakened later when she heard the front door close, defendant walk up
the stairs, and heard him making a crying noise. Quashaunda asked where he had been and he
replied that he was using the bathroom; she did not believe him because she had heard the front
door and he generally relieved himself in a jug in the attic during the night. Quashaunda also
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observed that defendant was “spaced out” and sweating, similar to past occasions when he
smoked crack cocaine.
Later that night, police came to Davis’ flat to inquire if she observed anything next door.
When the police left, she yelled to defendant and Quashaunda to see if they were there; both
responded affirmatively. She then woke her son up to see if he had heard anything, but he had
not. Davis went out to the porch to see what was happening next door and Quashaunda joined
her, but defendant stayed in bed.
Meanwhile, Mitchell gave the cellular phone to someone he identified as “Hustle Man.”
But several hours later, Hustle Man returned the phone and said, “[A] dead person on the
phone.” Mitchell did not understand and thought Hustle Man was joking or the phone was
broken. Sergeant Joseph Srebernak had been calling Gianino’s phone repeatedly after
responding to the crime scene. About three hours after the scene was secure, Mitchell called him
back using the phone. Sergeant Srebernak informed Mitchell that the phone had been involved
in a serious crime and he wanted to talk to Mitchell about how he came into possession of it.
Initially, Mitchell replied that he did not want to help, but later agreed to meet at a gas station
within five minutes. Mitchell testified that he never went to the gas station because he was afraid
he would be arrested for something he had no information about.
Mitchell stated that he then gave the phone to Gerald Miller who in turn gave it to his son
Brandon Hines. Miller and Hines ultimately called a number identified as “Mom” in the phone’s
contact list to return the phone. Gianino’s friend answered and scheduled a meeting at a Rite Aid
with Hines and then notified police about the meeting. When no one came to Rite Aid within 30
minutes of the meeting time, Hines left for work. Officer Ryan Milroth subsequently pulled him
over and arrested him; the victim’s cellular phone was recovered from Hines.
When Miller and Mitchell inquired with an officer, who was towing Hines’s vehicle,
about Hines’s arrest, Miller explained that he actually found the phone. Miller and Mitchell
were then arrested. During an interview with police, Mitchell explained how he obtained the
phone from defendant.
Dr. Francisco Diaz performed an autopsy and testified that Gianino died as the result of
strangulation and blunt trauma—at least three distinct blows with a “roughly round” shape—to
the head; the manner of death was homicide. On cross-examination, Dr. Diaz testified that it was
unlikely but not impossible that the blows were caused by human hands or a metal hammer, and
possible that they were caused by a rubber mallet. Gianino did not exhibit any defensive wounds
and had alcohol and anxiety medication in her blood.
On May 18, 2013, defendant was arrested and he was carrying a wallet, which was placed
in evidence at the police department. The police did not observe any defensive wounds on
defendant. In an interview with police, defendant denied delivering any property to anyone. He
also claimed that he did not know anyone on Alter Road, and he avoided that area because
someone tried to rob him in that neighborhood. When police asked if defendant knew
“Montana,” defendant replied that he did not and then further explained that he bought his crack
cocaine from someone in Detroit. He claimed that he had not smoked crack cocaine for about a
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month and that he never smoked marijuana. He also denied ever being inside the victim’s house,
and stated, “I’ve never seen the woman.”
While in jail, defendant wrote to Quashaunda, repeatedly asking her to retrieve his wallet
from the police. After reading the letters, Detective Pittman obtained a search warrant for
defendant’s wallet at the Wayne County Jail. The wallet contained an Abercrombie and Fitch
gift card. An Abercrombie and Fitch employee testified regarding the history of the gift card,
including the purchase of a t-shirt with a moose on it from the Lakeside Mall in Sterling Heights,
on August 30, 2010. The same kind of shirt was recovered from boxes of Gianino’s clothing.
In May 2013, Marvin Mullen was jailed with defendant. Mullen recalled that defendant
said his nephew spoke to the media about the allegations and he “wouldn’t know if he did it or
not.” Mullen testified that defendant said he knew the victim and her husband, who was mean
and usually came home from work at a “ball room or a bar” around 10:00 p.m. Mullen recalled
that defendant said he had left the house that night to get a beer at the store and also that he
found or took a laptop and a cellular phone, and then sold them. Finally, Mullen recalled that
defendant did not know why the police suspected him of murder because he “hadn’t did
nothing.” But when Mullen said the person who killed the victim was a “sick individual,”
defendant agreed and laughed.
In June 2013, Dominique Harris was jailed next to a person named “Myron,” whom she
spoke to through adjoining cells, but did not see until she was released. Myron told her that he
lived on Wayburn and that he had been arrested for the murder of a white woman on that street;
when she asked if he did it, defendant replied, “[I]f he did do it, [the police] wouldn’t find any
evidence, that he good at what he do.” He never denied murdering the victim and said, “he
wasn’t going to tell me because . . . I might snitch on him.” Defendant asked Harris three or four
times to contact Quashaunda and tell her to get his wallet because there was something inside
that he wanted her to retrieve.
In July 2013, Darius Johnson was jailed with defendant. He testified at trial that, when
he was incarcerated, he spoke with an unidentified male inmate through the wall, who “sounded
southern”1 and said he lived on Wayburn, had a wife, three kids, and a stepchild, and wanted to
talk to his sister. The inmate told Johnson about a murder that had been committed involving a
rope and the theft of some personal items, including a laptop and a cellular phone. When
discussing the murder, the inmate said, “I killed that bitch.” Johnson glimpsed at the inmate
when he changed cells; he was the same person that Johnson saw in court.
Defendant was convicted and sentenced as set forth above and this appeal ensued.
II. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that there was insufficient evidence to support his convictions.
1
During defendant’s interview with police, the police noted that defendant has a southern accent
and defendant explained that he is originally from Louisiana.
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We review a challenge to the sufficiency of the evidence de novo by reviewing the
evidence in the light most favorable to the prosecution to determine whether the trier of fact
could have found that the essential elements of the crime were proved beyond a reasonable
doubt. People v Harverson, 291 Mich. App. 171, 175; 804 NW2d 757 (2010). “Circumstantial
evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of
the elements of a crime.” People v Carines, 460 Mich. 750, 757; 597 NW2d 130 (1999).
The elements of felony murder include the following:
(1) the killing of a human being, (2) with the intent to kill, to do great
bodily harm, or to create a very high risk of death or great bodily harm with
knowledge that death or great bodily harm was the probable result, (3) while
committing, attempting to commit, or assisting in the commission of any of the
felonies specifically enumerated in MCL 750.316(1)(b) [including robbery]
[People v Burks, 308 Mich. App. 256, 264; 864 NW2d 580, 585 (2014) (quotation
marks and citations omitted).]
“To be guilty of unarmed robbery, a defendant must (1) feloniously take the property of another,
(2) by force or violence or assault or putting in fear, and (3) be unarmed.” Harverson, 291 Mich
App at 177.
The record indicates that there was a substantial amount of circumstantial evidence of
defendant’s guilt in this case. Specifically, evidence of defendant’s drug addiction, his history of
stealing to buy drugs, and his wife’s explanation that he used any earnings on drugs would have
allowed a rational jury to infer that defendant had a motive to steal from the victim to support his
drug addiction. In addition, evidence showed that defendant knew that the victim’s boyfriend
Hunsinger typically arrived home late from work, neighbors could see that the victim’s back
door was open on the evening of the offense, and the victim was under the influence of alcohol
and prescription medication, giving defendant an opportunity to steal from her and murder her to
conceal his crime. This evidence combined to show that defendant had motive and opportunity
to commit the crime. See People v Unger, 278 Mich. App. 210, 223-224; 749 NW2d 272 (2008)
(evidence of motive and opportunity are logically relevant in a prosecution for murder).
Additionally, other evidence showed that defendant possessed property that was stolen
from the victim on the night of the murder and that he used some of the property to support his
drug addiction. Specifically, defendant left home near the time the victim was killed and the jury
could infer from an inmate’s testimony about statements defendant made while they were in jail
together that defendant admitted to killing her. Defendant also sold Hunsinger’s laptop to
Mitchell in exchange for crack cocaine within approximately an hour of the offense and then left
the victim’s cellular phone and iPod on Mitchell’s couch. In his wallet, defendant stored a gift
card that the jury could infer belonged to the victim and was stolen from her during the robbery
and murder. Furthermore, defendant exhibited consciousness of guilt when he repeatedly urged
his wife to retrieve his wallet containing the stolen gift card from the police following his arrest.
See People v Kowalski, 489 Mich. 488, 509 n 37; 803 NW2d 200 (2011) (“attempts to conceal
involvement in a crime are probative of a defendant’s consciousness of guilt”). Finally,
defendant made false statements about knowing the victim, his drug use and knowledge of
Mitchell, and delivering the property stolen from the victim’s flat, which the jury could infer was
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an attempt to mislead or ward off suspicion and therefore strengthened other inferences of his
guilt. People v Seals, 285 Mich. App. 1, 5-6; 776 NW2d 314 (2009).
Viewing all of this evidence in a light most favorable to the prosecution, a rational trier of
fact could have concluded beyond a reasonable doubt that defendant was guilty of unarmed
robbery and felony murder. Harverson, 291 Mich. App. at 175.
Although defendant asserts that the victim may have given him the property, nothing in
the record supports this argument. Rather, a fellow jail inmate testified that defendant told him
that he took the laptop and cellular phone, and the jury could infer that the items were taken by
force from the fact that the victim was strangled and left on the floor of her flat from which the
items disappeared. Defendant’s theory regarding consent is also inconsistent with his statements
to the police that he did not know the victim and had no connection to the missing property.
In addition, defendant claims there was insufficient evidence to prove that the victim’s
death occurred in the course of a robbery, but the jury could infer from the evidence that the
victim’s property was taken at the same time she was killed. Furthermore, the jury could infer
from defendant’s statements to various inmates that he killed the victim and stole her property.
Defendant’s history of stealing for drugs, and the fact that he immediately exchanged the laptop
for cocaine supported that he killed the victim in the course of stealing the items to satisfy his
addiction. Defendant’s challenges to the credibility of the witnesses must fail because those
determinations are within the exclusive province of the jury and will not be second-guessed by
this Court on appeal. People v Gadomski, 232 Mich. App. 24, 28; 592 NW2d 75 (1998).
III. JURY VOIR DIRE
Next, defendant raises two issues related to the jury voir dire. First, defendant argues that
the trial court asked superficial, leading questions during voir dire and did little to uncover
potential biases. Second, defendant argues that the trial court abused its discretion by precluding
defense counsel from asking questions.
We review preserved challenges concerning voir dire for an abuse of discretion. People v
Tyburski, 445 Mich. 606, 619; 518 NW2d 441 (1994). “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.
“A defendant who chooses a jury trial has an absolute right to a fair and impartial jury.”
Tyburski, 445 Mich. at 618. “The purpose of voir dire is to elicit enough information for
development of a rational basis for excluding those who are not impartial from the jury.” Id.
“Defendant does not have a right to have counsel conduct the voir dire, nor does he have a right
to individual, sequestered voir dire. Neither does he have a right in every case to have the court
ask questions submitted by counsel.” Id. at 619. There are no “hard and fast rules” regarding
what constitutes acceptable voir dire. People v Sawyer, 215 Mich. App. 183, 186; 545 NW2d 6
(1996). “Rather, trial courts must be allowed wide discretion in the manner they employ to
achieve the goal of an impartial jury.” Id. at 186-187 (quotation marks omitted). In reviewing
the trial court’s conduct, the test is whether the trial court conducted a voir dire “sufficiently
probing . . . to uncover potential juror bias.” Tyburski, 445 Mich. at 609.
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With respect to defendant’s first argument, the record indicates that the trial court’s
questioning during voir dire was “sufficiently probing . . . to uncover potential juror bias.” Id.
Defendant argues that the trial court improperly “took at face value” the potential jurors’
responses whether they could give equal weight to witnesses’ testimony, even if a police officer
testified. But defendant’s argument is inconsistent with the record. The trial court not only
asked whether the potential jurors could follow its instruction to evaluate the testimony of a
police officer with the same standards of other witnesses, but also inquired about their
relationships to the law enforcement community, any negative experiences with the police, and
the arrest histories and criminal backgrounds of the potential jurors and their friends and family.
Defendant further argues that the trial court failed to probe potential jurors regarding their
close association with members of the legal community. Defendant’s argument is again
inconsistent with the record. The trial court did not simply ask potential jurors regarding
whether they had a relationship with someone in the legal community. Rather, if a relationship
existed, the trial court probed further about the type of relationship, the area of law practiced, the
frequency of contact the practitioner had with the potential jurors, any discussions the potential
jurors had had with the practitioner about the law, the ability of the potential jurors to avoid
contact with the practitioner during the trial, and the ability of the potential jurors to follow the
court’s instructions despite having learned something conflicting from any practitioners. The
trial court also asked the potential jurors if they could be fair and impartial despite their
relationships with members of the legal community.
Although defendant claims that the trial court’s questions were general and leading, he
does not articulate on appeal what additional probing questions the trial court should have asked,
and how different questions would have helped the parties to determine which potential jurors
were impartial. See e.g. People Orlewicz, 293 Mich. App. 96, 105; 809 NW2d 194 (2011),
remanded on other grounds 493 Mich. 916 (2012) (in rejecting the defendant’s challenge to the
trial court’s voir dire, this Court noted that “[d]efendant fails to articulate what the trial court
should have asked in addition to the questions it did ask. . . .”) Furthermore, when potential
jurors stated that their prior experiences or relationships might impair their abilities to decide the
case fairly, the trial court excused those individuals with the approval of the parties. Defendant’s
complaint that the trial court merely asked questions requiring a “yes” or “no” answer is
inconsistent with the record involving two days of voir dire wherein the trial court engaged in a
thorough examination of the potential jurors using multiple different questioning techniques.
Defendant’s second argument also fails. As noted, a defendant does not have the right to
have his attorney conduct voir dire. Tyburski, 445 Mich. at 619. However, in this case, the trial
court allowed both the prosecution and defense counsel to submit questions for the court to ask
potential jurors, but required that they be submitted at least a week before trial. Defense counsel
did not submit questions because he feared the questions would prematurely reveal his theory of
the case to the prosecutor. Because defense counsel prioritized the element of surprise over the
trial court’s voir dire deadline, it was not outside the range of principled outcomes for the trial
court to preclude defense counsel’s late request for questioning during voir dire. Unger, 278
Mich. App. at 217. Moreover, defendant does not articulate on appeal what additional probing
questions the trial court should have asked, or how different questions would have helped the
parties to determine which potential jurors were impartial. See Orlewicz, 293 Mich. App. at 105.
Furthermore, when potential jurors stated that their prior experiences or relationships might
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impair their abilities to decide the case fairly, the trial court either questioned the potential jurors
further or excused those individuals with the approval of the parties. Defendant’s contention that
the trial court merely asked questions requiring a “yes” or “no” answer is inconsistent with the
record involving two days of voir dire, during which the trial court adopted many questioning
techniques. Counsel repeatedly exercised peremptory challenges and consulted defendant
regarding those decisions. There is no evidence that any of the jurors were biased or that a more
thorough voir dire would have revealed any bias. In short, the trial court did not abuse its
discretion in conducting the voir dire. Tyburski, 445 Mich. at 619.
IV. PROSECUTORIAL MISCONDUCT
In a Standard 4 brief, defendant argues that many of the prosecutor’s statements in her
opening statement were not supported by the evidence and amounted to misconduct.
Defendant’s unpreserved claim of prosecutorial misconduct error is reviewed for plain
error affecting his substantial rights. People v Abraham, 256 Mich. App. 265, 274, 662 NW2d
836 (2003). We review a claim of prosecutorial misconduct to determine whether a defendant
was denied a fair and impartial trial. Id. at 272. Prosecutors are given latitude with regard to
their arguments. People v Bahoda, 448 Mich. 261, 282; 531 NW2d 659 (1995). “They are free
to argue the evidence and all reasonable inferences from the evidence as it relates to their theory
of the case.” Id.
All of defendant’s claims on appeal are inconsistent with the record. Specifically, the
record evidence and reasonable inferences arising from that evidence supported the prosecutor’s
statements that defendant’s living conditions were “far from ideal,” that defendant had a number
of jobs and “had a hard time keeping a job,” that defendant was receiving unemployment
insurance benefits, which “had been reduced, and that soon would be running out,” that
defendant “liked to drink, and he liked to smoke crack, and those things cost money,” and that
defendant would sometimes “find things in the trash that he would sell for money.” All of these
challenged statements, and the other assertions in the opening statement, were supported by
evidence presented at trial, including defendant’s own statements in an interview with police,
and reasonable inferences arising from the evidence. Bahoda, 448 Mich. at 282. None of the
statements were improper and defense counsel was not ineffective for failing to object to the
statements. See People v Thomas, 260 Mich. App. 450, 457; 678 NW2d 631 (2004) (counsel is
not required to make a futile objection.)
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Lastly, in his Standard 4 brief, defendant argues that defense counsel was ineffective for
failing to impeach Hunsinger’s boss DePuys, Mitchell, and Quashaunda.
Because defendant did not raise his claim of ineffective assistance of counsel in a motion
for a new trial or a Ginther2 hearing, our review is limited to mistakes apparent on the record.
2
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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People v Davis, 250 Mich. App. 357, 368; 649 NW2d 94 (2002). “To demonstrate ineffective
assistance, defendant must show: (1) that his attorney’s performance fell below an objective
standard of reasonableness, and (2) that this performance so prejudiced him that he was deprived
of a fair trial.” People v Gaines, 306 Mich. App. 289, 300; 856 NW2d 222 (2014) (citations
omitted). “To demonstrate prejudice, the defendant must show the existence of a reasonable
probability that, but for counsel’s error, the result of the proceeding would have been different.”
Id. (citations omitted). “Effective assistance of counsel is presumed, and defendant bears a
heavy burden of proving otherwise.” Id. “Decisions regarding what evidence to present and
whether to call or question witnesses are presumed to be matters of trial strategy.” People v
Rockey, 237 Mich. App. 74, 76; 601 NW2d 887 (1999). “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.” Id. 76-77.
Defendant’s argument regarding defense counsel’s alleged failure to impeach DePuys is
inconsistent with the record. Defendant’s theory of the case was that Hunsinger was the
perpetrator. Defense counsel’s first line of inquiry on cross-examination of DePuys, which
defendant quotes in his Standard 4 brief, involved what he told the police regarding the timing of
Hunsinger’s whereabouts. Then, in closing argument, defense counsel relied upon the doubt he
created, in part with the impeachment of DePuys’s timeline, to argue that Hunsinger had the
opportunity to commit the crime with 45 unaccounted-for minutes. Defendant fails to explain
what more defense counsel should have asked and has failed to show that counsel’s cross-
examination fell below an objective standard of reasonableness. Gaines, 306 Mich. App. at 300.
Defendant’s argument regarding defense counsel’s alleged failure to impeach Mitchell is
also inconsistent with the record. A review of counsel’s cross-examination of Mitchell indicates
that counsel challenged Mitchell’s recollection of events and his credibility and her performance
did not fall below an objective standard of reasonableness. Specifically, on direct examination,
Mitchell testified that defendant came to sell the laptop between 11:00 p.m. and midnight on the
night of the offense, but on cross-examination defense counsel questioned Mitchell whether he
remembered testifying at the preliminary examination that defendant actually visited between
10:00 p.m. and midnight. Mitchell testified that he did not remember that testimony, but later
agreed that defendant was there during that broader time span. Likewise, although Mitchell
testified on direct that defendant visited on the night of the offense, on cross-examination,
Mitchell agreed that he was confused about the date of defendant’s visit and defense counsel
asked whether Mitchell remembered testifying that his memory was impaired because he “was
getting high on the supply.” In his Standard 4 brief, defendant cites all of defense counsel’s
efforts to impeach Mitchell, but does not argue that counsel should have asked anything more
and he fails to show that counsel’s performance was deficient. Id.
Finally, defendant’s argument regarding defense counsel’s alleged failure to impeach
Quashaunda is again inconsistent with the record. On direct examination, Quashaunda testified
that defendant arrived home sometime after she started putting their children to bed. She also
testified that she could not be certain of defendant’s whereabouts from 10:00 p.m. to midnight,
because she slept during this period. Defense counsel elicited from Quashaunda that, during the
investigative subpoena, she had previously testified that defendant was home between 10:00 p.m.
and midnight, and according to a Facebook post, she was awake. In his Standard 4 brief,
defendant cites these efforts to impeach Quashaunda, but does not argue that defense counsel
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should have asked anything more. Therefore, he again fails to establish that defense counsel’s
representation fell below an objective standard of reasonableness.
In short, defendant has failed to show that counsel’s performance in cross-examining the
witnesses fell below an objective standard of reasonableness and he was not denied the effective
assistance of counsel as guaranteed by the Sixth Amendment. Gaines, 306 Mich. App. at 300.
Affirmed.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Donald S. Owens
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