People of Michigan v. Kevin Deandre Ware ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 17, 2020
Plaintiff-Appellee,
v No. 348310
Kalamazoo Circuit Court
KEVIN DEANDRE WARE, LC No. 2015-001179-FC
Defendant-Appellant.
Before: REDFORD, P.J., BECKERING and M. J. KELLY, JJ.
PER CURIAM.
In 2016, a jury convicted defendant of one count of armed robbery, MCL 750.529; and one
count of possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. On appeal, we reversed defendant’s convictions on the basis of ineffective assistance
of counsel arising from trial counsel’s failure to file a timely motion to suppress non-Mirandized
statements defendant made to police while he was in the hospital, and we remanded the matter for
a new trial.1 On remand, the trial court held an evidentiary hearing that resulted in the court’s
suppression of the statements. On retrial, defendant was convicted again of the same charges. He
now appeals by right. For the reasons stated below, we affirm.
I. RELEVANT FACTS AND PROCEEDINGS
In August 2015, two men robbed TJ’s Party Store in Kalamazoo, Michigan. One of the
men brandished a firearm and wore a white cloth that covered his mouth, but exposed his nose and
cheeks. The other individual was unarmed and did not wear a mask. Among the items they took
1
People v Kevin Deandre Ware, unpublished per curiam opinion of the Court of Appeals, issued
January 9, 2018 (Docket No. 333988).
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were cash, cigarettes, and various bottles of liquor. Approximately an hour and a half after the
robbery, Sheriff’s deputies conducted a traffic stop on a vehicle driven by defendant in Van Buren
County. Located in the vehicle were defendant, who initially identified himself as Jalen Johnson,
and Kristopher Jackson, who ultimately pleaded guilty as the unarmed robber of the party store.
Once deputies removed Jackson from the vehicle, defendant fled the scene in the car in an attempt
to evade arrest. In the process of fleeing he crashed his vehicle, was ejected from it, and had to be
airlifted to a hospital to receive treatment for his injuries. The Van Buren deputies contacted
Kalamazoo Public Safety to inform it that they believed the men in the vehicle were the suspects
in the party-store robbery.
A search of the vehicle revealed several items stolen from the party store, along with cash
and a firearm matching the description of that used during the robbery. Although defendant was
not wearing clothes that matched those worn by the individual who wore the mask during the
robbery, the clothing of the masked individual was found in the backseat of the crashed vehicle.
Defendant called Jackson as a witness at trial and Jackson denied that defendant was the masked
individual.
As indicated, the jury found defendant guilty of armed robbery and felony-firearm. The
trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 25 to 50
years’ imprisonment for his armed-robbery conviction, with 541 days of credit, and a mandatory
2-year consecutive sentence for his felony-firearm conviction, with 731 days of jail credit. This
appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues that he received ineffective assistance of counsel during the plea-
bargaining phase because his trial counsel did not inquire into what sentence the prosecutor would
recommend if defendant accepted the plea agreement offered.
Whether a defendant has been deprived of the effective assistance of counsel presents a
mixed question of fact and constitutional law. See People v Trakhtenberg, 493 Mich. 38, 47; 826
NW2d 136 (2012). Where the trial court has held a Ginther2 hearing, we review the trial court’s
findings of fact for clear error and questions of law de novo. People v Anderson, 322 Mich. App.
622, 628; 912 NW2d 607 (2018) (quotation marks and citation omitted). Where, as here, no
Ginther hearing was held,3 our review is limited to mistakes apparent from the record. Id.
To prevail on a claim of ineffective assistance, a defendant must establish both deficient
performance and prejudice. Trakhtenberg, 493 Mich. at 51. To establish deficient performance,
the defendant must show “that counsel’s representation fell below an objective standard of
2
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
3
Defendant filed a motion in this Court seeking remand for a Ginther hearing, but we denied the
motion because we were not persuaded the remand was necessary. People v Kevin Deandre Ware,
unpublished order of the Court of Appeals, entered November 4, 2019 (Docket No. 348310).
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reasonableness.” Id. To establish prejudice, the defendant must show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. “Because defendant bears the burden of demonstrating both deficient
performance and prejudice, the defendant necessarily bears the burden of establishing the factual
predicate for his claim.” People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001).
“A defendant is entitled to the effective assistance of counsel in the plea-bargaining
process.” People v Douglas, 496 Mich. 557, 591; 852 NW2d 587 (2014). To demonstrate prejudice
resulting from counsel’s deficient performance in the plea-bargaining process, the “ ‘defendant
must show the outcome of the plea process would have been different with competent advice.’ ”
Id. at 592, quoting Lafler v Cooper, 566 U.S. 156, 163; 132 S. Ct. 1376, 1384; 182 L. Ed. 2d 398
(2012).
At a settlement conference held days before defendant’s trial, the prosecution placed on
the record the plea agreement it had offered defendant:
The offer is the same offer that was presented to the defendant prior to the first time
he went to trial in this matter. That being if he pleads guilty to the count one and
count two as a habitual second, the People would dismiss the remainder of the
charges and the supplemental information. The important part of the offer is that
that would also negate the mandatory 25 year minimum in this case. The People
would keep our right to make a recommendation at the time of sentencing.
Defendant agreed on the record that his attorney had relayed this offer to him, and that he had
discussed it with his attorney, but he said that he wanted to proceed to trial. On appeal, defendant
contends that he asked his trial counsel what the prosecution’s sentencing recommendation was
going to be, and she responded that she did not know. Defendant asserts that “it was deficient
performance for trial counsel not to have made some inquiry of the prosecution as to what
recommendations they were considering” (emphasis defendant’s).
Assuming for the sake of argument that defendant’s trial counsel did not inquire into the
prosecution’s anticipated sentencing recommendation, defendant has cited no authority supporting
his assertion that failure to do so constitutes deficient performance at the plea-bargaining stage.
The record shows that trial counsel accurately relayed the prosecution’s favorable plea-agreement
offer to defendant. See Missouri v Frye, 566 U.S. 134, 145; 132 S. Ct. 1399, 1408; 182 L. Ed. 2d 379
(2012) (holding that defense counsel has a duty “to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to the accused”). And
there is no record evidence, nor does defendant assert, that counsel gave him legally flawed advice
that caused him to reject the plea-agreement. See Lafler, 566 U.S. at 161; 132 S. Ct. 1376, 1383
(where trial counsel erroneously informed defendant the prosecution could not establish intent to
murder because defendant shot the victim below the waist); see also People v McCauley, 287 Mich
App 158, 164; 782 NW2d 520 (2010) (where trial counsel misinformed defendant that he could
not be convicted of felony murder because he did not fire the fatal shot), rev’d on other grounds
493 Mich. 872 (2012). There may be a case where trial counsel’s failure to inquire into the
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prosecution’s anticipated sentencing recommendation could constitute deficient performance, but
this does not strike us as that case.
Further, even if we assumed for the sake of argument that trial counsel’s failure to ask
about the prosecution’s sentencing recommendation constituted deficient performance, defendant
has failed to show prejudice. In Griffin v United States, 330 F3d 733, 737 (CA 6, 2003), the Sixth
Circuit Court addressed the evidence necessary for a defendant to establish the prejudice prong,
concluding that “a substantial disparity between the penalty offered by the prosecution and the
punishment called for by the indictment is sufficient to establish a reasonable probability that a
properly informed and advised defendant would have accepted the prosecution's offer.” Relying
on this proposition, defendant argues that the gross disparity between the 126-month minimum
sentence he could have received and the 25-year minimum sentence that he did receive
demonstrates that there was a reasonable probability he would have accepted the plea had he been
properly informed.4
The present defendant’s situation is distinguishable from that of the defendant in Griffin.
Counsel for the defendant in Griffin failed to relay the Assistant United States Attorney’s offer of
a five-year sentence, conditioned on the defendant’s cooperating with authorities. Griffin, 330 F3d
at 734-735. The defendant went to trial, was convicted, and was then sentenced to 13 years in
prison, five years of parole, and a $200 special assessment. Id. at 735. In light of these
circumstances, the Sixth Circuit concluded that prejudice had resulted from trial counsel’s failure
to relay the plea-agreement offer to defendant because the disparity between the five-year offer
and the 13-year sentence established a reasonable probability that, had his attorney properly
informed him of the five-year offer, defendant would have accepted it. See id. at 737.
Unlike the defendant in Griffin, the present defendant was fully aware of the prosecution’s
plea-agreement offer and that it allowed him to avoid the 25-year mandatory minimum sentence
he would be subject to as a fourth habitual offender if convicted, MCL 769.12(1)(a). Part of the
plea offer was that the prosecution retained its right to recommend a sentence. Given that the
prosecution had expressly taken the 25-year mandatory minimum sentence off the table as part of
the plea offer, there was no reason to believe that the prosecutor would recommend a sentence of
25 years or more. Further, the plea offer did not obligate the prosecution to inform defendant of
its anticipated sentencing recommendation, and even if the prosecution had told defendant what it
planned to recommend, the court was not obligated to accept the recommendation. See People v
Swirles, 218 Mich. App. 133, 140; 553 NW2d 357 (1996) (indicating that a prosecutor’s sentencing
recommendation does not limit the court’s sentencing discretion). Thus, the only concrete
information defendant would possess to factor into his decision whether to accept the plea-
4
According to defendant’s sentencing information report, the court assessed defendant 77 prior
record variable points and 30 offense variable points. This put defendant in the F-II sentencing
grid for Class A offenses, and called for a minimum sentence for a fourth habitual offender of 126
to 420 months. Had defendant accepted the plea agreement, he would have been sentenced as a
second habitual offender, subject to a minimum sentence of 126 to 262 months. As it was, he was
subject to a minimum sentence of 300 (25-year mandatory minimum) to 420 months.
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agreement offer was the expressed terms of the offer itself. Defendant did not receive a greater
sentence as a result of ineffective assistance of counsel; he received precisely the sentence he knew
he would if he rejected the plea offer and was convicted at trial. Having been convicted and
sentenced as he knew he would be, defendant now seeks to avoid the consequences of his choices.
Given the record before us, and assuming for the sake of argument that counsel’s performance was
constitutionally deficient, we conclude that defendant has failed to show prejudice from counsel’s
failure to inquire into the prosecution’s anticipated sentencing recommendation.
Defendant having failed to meet his burden to establish both prongs of the test for
ineffective assistance of counsel, his claim must fail. See Trakhtenberg, 493 Mich. at 51.
III. MRE 404(B) EVIDENCE
Defendant next argues that the trial court erred in admitting evidence of defendant’s flight
from Sheriff’s deputies in Van Buren County because the evidence was not relevant and the
prosecution had not fulfilled the notice required by MRE 404(b)(2). We disagree.
Defendant did not preserve this issue for appellate review with a timely objection in the
trial court. See People v Pipes, 475 Mich. 267, 277; 715 NW2d 290 (2006) (indicating that to
preserve most issues for appellate review, a party must object below). Therefore, our review is for
plain error affecting defendant’s substantial rights. See People v Carines, 460 Mich. 750, 763; 597
NW2d 130 (1999). “An error is plain if it is ‘clear or obvious,’ and it affects substantial rights if
it ‘affected the outcome of the lower court proceedings.’ ” People v Miller, 326 Mich. App. 719,
726; 929 NW2d 821 (2019), quoting Carines, 460 Mich. at 763.
MRE 404(b)(1) prohibits evidence of other crimes, wrongs, or acts, from being used to
prove a defendant’s character and that the defendant committed the charged crimes in conformity
with his or her character. MRE 404(b)(1) states:
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
MRE 404(b) is a rule of inclusion, not of exclusion. See People v Jackson, 498 Mich. 246,
259; 869 NW2d 253 (2015). It excludes evidence of other acts where the only logical relevance
of the evidence is to show a defendant’s character for wrongdoing or criminal propensity, and the
sole purpose of the evidence is to prove that the defendant acted in accordance with that character
or criminal propensity to commit the charged crimes. See id. at 258. “Evidence relevant to a
noncharacter purpose is admissible under MRE 404(b) even if it also reflects on a defendant's
character.” Id. at 259.
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 Other-acts evidence is admissible if relevant and offered for a proper purpose, and if the
probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.
Other-acts evidence is relevant if it has any tendency to make the existence of a material fact more
or less probable than it would be without the evidence. MRE 401. “A material fact is one that . . .
is within the range of litigated matters in controversy.” People v Sabin (After Remand), 463 Mich.
43, 57; 614 NW2d 888 (2000) (quotation marks and citation omitted). A proper purpose is one
that requires the factfinder to make an intermediate inference other than one about a defendant’s
character or criminal propensity. See id. at 87. “Evidence is unfairly prejudicial when there exists
a danger that marginally probative evidence will be given undue or preemptive weight by the jury.”
People v Crawford, 458 Mich. 376, 398; 582 NW2d 785 (1998).
Evidence of defendant’s flight from Van Buren Sheriff’s deputies was relevant to the
material issue of the identity of the perpetrators of the armed robbery at issue. Relevance involves
materiality and probative value. People v McGhee, 268 Mich. App. 600, 610; 709 NW2d 595
(2005). “Materiality refers to whether the fact was truly at issue.” Id. Defendant entered a plea
of not guilty, which “requires the prosecution to prove every element of the offense.” Id. “[I]dentity
is an element of every offense.” People v Savage, 327 Mich. App. 604, 614; 935 NW2d 69 (2019).
Evidence of flight is also probative “because it may indicate consciousness of guilt . . . .” People
v Coleman, 210 Mich. App. 1, 4; 532 NW2d 885 (1995); see also McGhee, 268 Mich. App. at 613
(“Evidence of flight may be used to show consciousness of guilt”). “The term “flight” has been
applied to such actions as fleeing the scene of the crime, leaving the jurisdiction, running from the
police, resisting arrest, and attempting to escape custody.” Coleman, 210 Mich. App. at 4. “[I]t is
always for the jury to determine whether evidence of flight occurred under such circumstances as
to indicate guilt.” People v Unger, 278 Mich. App. 210, 226; 749 NW2d 272 (2008).
In the present case, Deputy Robert Miersma of the Van Buren Sheriff’s Department
testified that he and his partner received a dispatch to be on the lookout (“BOL”) for two men who
had robbed a party store in Kalamazoo. The dispatch provided descriptions of the men and of the
clothing they had been wearing, as captured by the store’s video surveillance camera.
Approximately 90 minutes after receiving the BOL, the deputies noticed a car with too-dark tint
on the passenger-side window and executed a traffic stop. Deputy Miersma testified that he
approached the passenger’s side of the vehicle while his partner approached the driver’s side, and
that as soon as he saw the passenger, he recognized that he and his clothing matched the description
of one of the robbers provided by the BOL. Seeing that the passenger had an open container of
alcohol by his leg, he took the passenger into custody and placed him in the backseat of the patrol
car while his partner remained with the driver of the vehicle, who turned out to be defendant. As
Deputy Miersma went back toward the stopped vehicle, defendant started the car and sped away
from the scene, “pedal to the metal.” The deputies pursued defendant, who eventually crashed the
car and had to be taken by helicopter to the hospital for treatment of the injuries he suffered in the
crash.
Considering that the armed robbery at issue had happened in a neighboring county less
than two hours before the deputies stopped the car defendant was driving, that Deputy Miersma
recognized the passenger as one of the men described in the BOL, and that the deputy arrested the
passenger and put him in the back seat of the officer’s patrol car and was heading back to
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defendant’s side of the stopped vehicle to speak with defendant, the evidence that defendant fled
was both relevant to and probative of the question of whether he was one of the robbers involved
in the party-store robbery. That defendant started the car and sped away while one deputy was
standing at his window and another was on his way back to the vehicle clearly shows defendant’s
intent to avoid further scrutiny and possible arrest. Defendant’s implication to the contrary
notwithstanding, “[e]vidence of flight may be used to show consciousness of guilt.” McGhee, 268
Mich. App. at 613. Thus, evidence that defendant fled from the deputies was relevant and offered
for a proper purpose, and defendant has identified no impermissible character-to-conduct inference
that would weigh against admission under the MRE 403 balancing test.
Further, it is undisputed that the prosecution did not provide notice to defendant of its intent
to elicit evidence of defendant’s fleeing and eluding. However, under the circumstances presented
here, we conclude that the omission was harmless.
MRE 404(b)(2) requires the prosecution to provide pretrial notice of its intent to use 404(b)
evidence as follows :
The prosecution in a criminal case shall provide written notice at least 14 days in
advance of trial, or orally on the record later if the court excuses pretrial notice on
good cause shown, of the general nature of any such evidence it intends to introduce
at trial and the rationale, whether or not mentioned in subparagraph (b)(1), for
admitting the evidence. If necessary to a determination of the admissibility of the
evidence under this rule, the defendant shall be required to state the theory or
theories of defense, limited only by the defendant’s privilege against self-
incrimination.
MRE 404(b)(2)’s requirement that the prosecution give “pretrial notice of its intent to
introduce other acts evidence at trial is designed to “promote [ ] reliable decision making,” to
“prevent[ ] unfair surprise,” and to “offer [ ] the defense the opportunity to marshal arguments
regarding both relevancy and unfair prejudice.” Jackson, 498 Mich. at 261, quoting VanderVliet,
444 Mich. at 89, 89 n 1. Where failure to give the required notice does not result in the admission
of substantively improper other-acts evidence, defendants were not unfairly surprised, and
defendants do not show that their arguments against admission of the evidence “would have been
availing” or that they would have called witnesses to counter the other-acts evidence, or that they
would have changed their defense strategy had they known that the other-acts evidence was going
to be offered, failure to comply with the notice requirement is harmless error. See Jackson, 498
Mich. at 278-279.
As discussed above, the prosecution’s failure to comply with the notice requirement did
not result in the admission of substantively inadmissible other-acts evidence: the evidence was
relevant, offered for a proper purpose, and there is no evidence that the danger of unfair prejudice
substantially outweighed its relevance. In addition, defendant was not unfairly surprised. This
was defendant’s second trial on the armed robbery charge, the evidence of flight had been admitted
at his first trial, and the record shows that defense counsel had copies of the transcripts from the
first trial. Thus, that the prosecution would elicit testimony about defendant’s flight from the
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deputies was not a surprise. Further, as we explained above, defendant’s argument against
admission of the evidence because it was not relevant and allowed the jury to infer a guilty
conscience is unavailing. Finally, defendant has not indicated how, or whether, he would have
called additional witnesses or changed his defense strategy had he known in advance that the
evidence of flight would be admitted. Given the foregoing, we conclude that the prosecution’s
failure to notify defendant that it would elicit testimony about defendant’s flight from the deputies
is harmless error. See id.
IV. ADMISSION OF PHOTOGRAPHS
Next, defendant contends that the trial court abused its discretion by allowing the
prosecution to admit certain photographs of defendant because any probative value the
photographs might have had was substantially outweighed by the danger of unfair prejudice, MRE
403. We disagree.
This Court reviews claims of evidentiary error for an abuse of discretion. See People v
Bergman, 312 Mich. App. 471, 482; 879 NW2d 278 (2015). “An abuse of discretion occurs when
the court chooses an outcome that falls outside the range of reasonable and principled outcomes.”
Id. at 483 (quotation marks and citation omitted). “If the court’s evidentiary error is
nonconstitutional and preserved, then it is presumed not to be a ground for reversal unless it
affirmatively appears that, more probably than not, it was outcome determinative—i.e., that it
undermined the reliability of the verdict.” Douglas, 496 Mich. at 565-566 (quotation marks and
citation omitted).
As already indicated, evidence is relevant if it has “any tendency to make the existence of
a fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” MRE 401. All relevant evidence is admissible at trial unless
otherwise prohibited by the United States or Michigan Constitutions, the rules of evidence, or other
rules adopted by the Supreme Court. MRE 402. However, even relevant evidence is inadmissible
if its probative value is substantially outweighed by, among other things, the danger of unfair
prejudice. MRE 403. In the context of MRE 403, “prejudice means more than simply damage to
the opponent’s cause.” People v Vasher, 449 Mich. 494, 501; 537 NW2d 168 (1995). It means
that evidence has an “undue tendency to move the tribunal to decide on an improper basis,
commonly, though not always, an emotional one.” Id. Relevant considerations in determining
unfair prejudice include whether the jury will give marginally probative evidence undue or
preemptive weight and whether the use of the evidence is inequitable. See People v Mills, 450
Mich. 61, 75-76; 537 NW2d 909 (1995). “Mere prejudice is insufficient to justify reversal.”
People v Albers, 258 Mich. App. 578, 591; 672 NW2d 336 (2003).
The evidence at issue consisted of three photographs: one showing a front-facing headshot,
the second showing defendant in profile, and the third a collage showing defendant’s front-facing
headshot next to two still photographs taken from the video surveillance at TJ’s Party Store. The
still photographs depicted an individual wearing a knit cap and a white mask that covered the
individual’s mouth, but exposed the person’s nose and cheeks. Defendant concedes that the
photograph evidence was relevant, but contends that they were unduly prejudicial because they
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showed him in jail garb. He argues that the jury could easily have made a comparison between
him and the individual shown in the still photographs on the basis of its observation of him over
the course of the three-day trial. According to defendant, the only conceivable purpose of
admitting the photographs was to remind the jury that he had been arrested and was currently a
prisoner, and to suggest that the police had arrested the right person.
Contrary to defendant’s argument, the photographs of defendant does not clearly show him
in jail garb. After reviewing the photographs, we agree with the trial court that the photographs
are cropped in such a way that defendant appears to be wearing an orange collared shirt, and that
nothing in the photographs indicate where they were taken. At the same time, we acknowledge
that the photograph of defendant in profile might suggest that it was taken under circumstances of
confinement. Even so, we cannot say that any prejudice arising from the suggestiveness of the
profile picture substantially outweighed the probative value of the photographs.
Defendant’s conviction for armed robbery rested on circumstantial evidence of his identity.
These photographs, particularly the collage, were probative of the identity of the perpetrator of the
robbery, a material fact the prosecution needed to prove. See Savage, 327 Mich. App. at 614. The
jury was able to examine the photographs closely to determine whether they depicted the same
person shown in the stills from the surveillance camera. Defendant argues that the photographs
were unnecessary because the jury could have decided if he was the same person pictured in the
surveillance video based on its observation of him during the three-day trial. However, jurors
obviously could have studied the photographs in the jury room far more critically than they could
have scrutinized defendant during the trial. Moreover, “[t]here is no rule requiring the prosecution
to use only the least prejudicial evidence per se to establish facts at issue.” People v Fisher, 449
Mich. 441, 452; 537 NW2d 577 (1995).
Finally, we find unpersuasive defendant’s argument that the purpose of the photographs
was merely to remind the jury that he had been arrested and confined, and that the police arrested
the right person. It seems unlikely that the jury would have been unaware that defendant had been
arrested or that it would have forgotten that fact over the course of the three-day criminal trial, and
it seems highly likely that it would have assumed that the police thought they arrested the right
person. The circumstantial nature of the evidence against defendant meant that the photographs
were critical pieces of evidence for the jury to use in determining if the police really had arrested
the right person, and the headshots of defendant did not clearly indicate that he was wearing jail
garb. Under these circumstances, we conclude that the probative value of the photographs was not
substantially outweighed by any danger of undue prejudice. MRE 403. Admitting the photographs
into evidence was within the range of reasonable and principled outcomes and, therefore, the trial
court’s evidentiary ruling was not an abuse of discretion. See Bergman, 312 Mich. App. at 482,
483.
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V. DEFENDANT’S REMAINING ISSUES
Defendant raises two issues in a Standard 4 Brief,5 neither of which have merit. Defendant
first argues that defense counsel was ineffective for failing to challenge the district court’s bindover
on the basis of this Court’s previous decision reversing defendant’s convictions for a new trial and
its statement that the “evidence of defendant’s guilt was circumstantial,” Ware, unpub op at 6.
However, because defendant has been “fairly convicted at trial, no appeal lies regarding whether
the evidence at the preliminary examination was sufficient to warrant a bindover.’ ” People v
Bosca, 310 Mich. App. 1, 45; 871 NW2d 307 (2015), quoting People v Wilson, 469 Mich. 1018,
1018; 677 NW2d 29 (2004). Moreover, to the extent that defendant assumes that circumstantial
evidence is insufficient to support a conviction, he is mistaken. “Circumstantial evidence and all
reasonable inferences drawn therefrom can constitute satisfactory proof of the crime.” People v
Nowack, 462 Mich. 392, 400; 614 NW2d 78 (2000). Therefore, we reject defendant’s argument
that defense counsel was ineffective for failing to challenge to the district court’s bindover.
Next, defendant argues that defense counsel was ineffective for failing to strike a juror
from his jury because of her relationship with law enforcement. Defendant’s assertion is without
factual basis. The record shows that the juror in question did not serve on the jury that convicted
defendant because she was struck for cause during voir dire.
Affirmed.
/s/ James Robert Redford
/s/ Jane M. Beckering
/s/ Michael J. Kelly
5
A “Standard 4” brief refers to the brief a defendant may file in propria persona pursuant to
Standard 4 of Michigan Supreme Court Administrative Order No. 2004-6, 471 Mich. c, cii (2004).
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