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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 26, 2017

v No. 328866
Oakland Circuit Court DOUGLAS MARTIN FREDERICK, LC No. 2014-252255-FH

Defendant-Appellant.

Before: B ECKERING , P.J., and S AWYER and S AAD , JJ.

P ER C URIAM

.
A jury convicted defendant of one count of breaking and enteri ng, MCL 750.110, and one count of malicious destruction of property of $1,000 or mor e, but less than $20,000, MCL 750.377a(1)(b)( i ). The trial court sentenced defendant to 18 months’ probation . Defendant appeals, and for the reas ons provided below, we affirm.

The charges in this case arose out of a break-in at the Oaklan d County Veteran Services (OCVS) office in Troy. Police testimony established that someo ne shattered the exterior and interior glass doors of the build ing and entered the office. F eces were found near the receptionist’s counter, on an information pamphlet, and on a de corative bow on the floor. Video
taken from a surveillance camera was admitted into evidence and played for the jury. Two employees identified defendant as the person seen on the survei llance video. The employees stated that they were familiar with defendant because two days before the break-in, defendant visited the office twice on the same day and was angry that he was denied benefits. Before leaving the office after his second visit, defendant stated, “I am going to go all PTSD on your office[!]”

On defendant’s initial appeal, we remanded to the trial court to conduct an evidentiary hearing on defendant’s claims of ineffective assistance of coun sel and newly discovered
evidence. 1 Following the hearing, the trial court denied defendant’s mot ion for a new trial.

1 People v Frederick , unpublished order of the Court of Appeals, entered April 8, 2 016 (Docket No. 328866).-2- Before us are the issues considered by the trial court on rema nd: (1) whether trial counsel’s decision not to object t o certain testimony regarding his bipolar disorder amounted to
ineffective assistance of counsel and (2) whether defendant was entitled to a new trial based on newly discovered evidence from a sleep apnea machine which purp orted to show that he was home asleep at the time of the crimes. 2

“We review for an abuse of discretion a trial court’s decision to grant or deny a motion
for a new trial.” People v Grissom , 492 Mich 296, 312; 821 NW2d 50 (2012). “A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes or [when it] makes an error of law.” People v Swain , 288 Mich App 609, 628-629; 794 NW2d 92 (2010) (citation omitted).

I. INEFFECTIVE ASSISTANCE OF COUNSEL

“A claim of ineffective assistance of counsel is a mixed quest ion of law and fact.” People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008). “A trial court’s findings of fact, if any, are reviewed for clear e rror,” while “the ultimate cons titutional issue arising from an
ineffective assistance of counsel claim” is reviewed de novo. Id.

A defendant must meet two requirements to warrant a new trial because of the ineffective assistance of trial counsel. First, the defend ant must show that counsel’s performance fell below an objective standard of reaso nableness. In doing so, the defendant must overcome the strong presumption th at counsel’s assistance constituted sound trial strategy. Second, the defen dant must show that, but for counsel’s deficient perfo rmance, a different result wou ld have been reasonably probable. [ People v Armstrong , 490 Mich 281, 289-290; 806 NW2d 676 (2011) (citations omitted); see also Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984).]

“A reasonable probability is a probability sufficient to underm ine confidence in the outcome.”
Strickland , 466 US at 694. “It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding.” Harrington v Richter , 562 US 86, 104; 131 S Ct 770; 178 L Ed 2d 624 (2011) (quotation marks and citation omitted).

The reviewing court must make every effort “to eliminate the d istorting effects of hindsight,” Strickland , 466 US at 689, including being mindful that no expectation sh ould exist “that competent counsel will be a flawless strategist or tactic ian,” Harrington , 562 US at 110. The reviewing court should “affirmatively entertain the range o f possible reasons . . . counsel may have had for proceeding as they did.” Cullen v Pinholster , 563 US 170, 196; 131 S Ct 1388; 179 L Ed 2d 557 (2011) (quotation marks and citation omit ted). Furthermore, counsel’s decisions regarding the choice of theories to present is presum ed to be sound exercises of trial

2 The trial court also considered and addressed whether the prob ation condition imposed by the
court to “not enter Veterans Administration offices” was overbr oad and violated defendant’s due process rights. But, as we explai n later, this issue is not be fore us.-3- strategy, People v Davis , 250 Mich App 357, 368; 649 NW2d 94 (2002), and “[a] particula r strategy does not constitute ineff ective assistance of counsel simply because it does not work.” People v Matuszak , 263 Mich App 42, 61; 687 NW2d 342 (2004).

During the examination of defense witness, Dr. Fayez Shukairy, it was elicited that he had been defendant’s primary care physician for over 20 years a nd treated defendant “for whatever condition comes up.” While recounting defendant’s ail ments, Dr. Shukiary testified
that he referred defendant to a neurosurgeon for problems with his back. But Dr. Shukiary stated that the first neurosurgeon that he referred defendant to “does not want to see him anymore”; consequently, Dr. Shukiary refe rred defendant to a second neuro surgeon. On cross-examination, the prosecutor inquired into why the first neurosurgeon did not want to see defendant anymore. Dr. Shukiary suspected that it was because defendant had “bipol ar disorder” and during his office visits, defendant would “complain[] from A to Z . . . ab out everything” and the first neurosurgeon may not have been comfortable with that. Dr. Shuk iary also testified that defendant could become quite a gitated, but not violent.

After both parties finished questioning Dr. Shukiary, the tria l court allowed the jury to ask questions. Five of the questions submitted by the jury wer e posed to Dr. Shukiary.
Defendant claims that his trial counsel should have objected to these two questions/answers:

Q . Do you know, does the defenda nt to your knowledge faithfully medicate for his bipolar disorder?

A . I don’t think he does.

Q . Does the defendant have a history of mood swings?

A . Well, by the nature of the bi polar disorders, yes.

Defendant has failed to prove that trial counsel’s decision no t to object to the jury’s questions fell below an objective standard of reasonableness. We reject defendant’s initial claim that Dr. Shukiary lacked the r equisite personal knowledge to te stify on these matters. It was established that Dr. Shukiary re gularly treated defendant for a very long time and had access to defendant’s records from other treating specialists that defend ant saw. Thus, there is nothing to support defendant’s position that Dr. Shukiary lacked personal knowledge to answer the two questions asked by the jury. Indeed, such an argument is contr ary to defense counsel’s position at the trial court that Dr. Shukiary could testify regarding th e other medical conditions defendant suffered from, despite the fact t hat the other specialists prim arily were responsible for the
treatment of those other conditions.

Defendant’s second claim that the questions sought to elicit i rrelevant information—and therefore were inadmissible—is a much closer call. MRE 402 pre cludes the admission of irrelevant evidence. Here, ar guably, whether defendant “faithf ully” took medication to treat his bipolar disorder was not relevant to any issue before the jury. Thus, the evidence was not admissible. However, defense counsel testified at the evidenti ary hearing that he did not object at trial because he thought tha t Dr. Shukiary’s answer would no t “damag[e] our case.” We are not convinced that counsel acted unreasonably. While an object ion based on a lack of relevancy may have ultimately been successful, such an objection may have had the unintended-4- consequence of highlighting to t he jury defendant’s lack of dil igence with his medication. When defense counsel’s sole defense theory at trial was that defenda nt was not the person who broke into the OCVS office and committed the charged crimes, it is ea sy to see why counsel would not spend any appreciable effort to prevent the introduction of evi dence at trial that neither tended to prove that he committed the offenses 3 nor tended to prove that he was not present at the time of
the offenses.

Moreover, assuming that defense counsel should have lodged an objection to the jury’s questions, defendant’s assertion that the failure caused prejud ice is purely speculative. There is no evidence that the jury would have reached a different verdic t if they had not been exposed to the evidence that defendant failed to faithfully take his bipol ar disorder medication. 4 Two employees of the office testified that they each had an interac tion with defendant just two days
before the break-in where defenda nt not only made threats, but made a specific threat against their particular office. Those two employees were also able to independently identify defendant on the surveillance tape. An o fficer also testified that the s urveillance video s howed that the man who broke into the office was approximately 5’ 6” tall, and the re was evidence that defendant was indeed 5’ 6” tall. Further, that same officer testified th at when he questioned defendant and notified defendant that his vehicle appeared to be at OCVS at t he time the crimes were committed, defendant admitted that he might have been in the ar ea because he turned around in the parking lot near that time. His admission to the officer t hat he was indeed in the parking lot the night of the crimes would have been too much of a coinciden ce for the jury to disregard. We
also note that the surveillance video was played for the jurors , which gave them the opportunity to view and assess it. Therefore, in light of this evidence, d efendant cannot show “a different result would have been reasonably probable” if trial counsel ha d prevented the jury’s questions related to bipolar disorder from being asked. Consequently, th e trial court did not abuse its
discretion when it denied defendant’s motion for a new trial ba sed on a claim of ineffective
assistance of counsel.

II. NEWLY DISCOVERED EVIDENCE

3 It is important to note that the prosecution never claimed tha t defendant’s disorder made him more likely to have committed the charged acts. Indeed, the on ly other reference to defendant’s bipolar disorder occurred during the prosecutor’s rebuttal argu ment, where she argued to the jury
that defendant’s mental stat e was irrelevant and should not be considered in the jury’s
deliberations.

4 Again, the fact that defendant s uffered from bipolar disorder was previously admitted into evidence and the admission of that evidence is not challenged o n appeal. We note that the second jury question pertaining t o whether defendant has a hist ory of mood swings has absolutely no prejudicial effect . Dr. Shukiary’s answer to thi s question was somewhat repetitive, as we believe that most people today are probably already somew hat familiar that “bipolar disorder” entails “mood swings” or “alternating episodes of dep ression and mania.” See Merriam-Webster’s Collegiate Dictionary (11th ed).-5- Defendant also argues that he should be granted a new trial du e to newly discovered evidence, which consists of data from a sleep apnea machine. D efendant asserts that the data proves that he was at home at the time the charged crimes were committed.

The grant of a new trial due to newly discovered evidence is a ppropriate if a defendant can prove that “(1) the evidence itself, not merely its materia lity, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party cou ld not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial.” People v Cress , 468 Mich 678, 692; 664 NW2d 174 (2003) (quotation marks and citations omitted). The parties agree the evidence is newly discovered and non-cumulative. The parties disagree, however, that the eviden ce could not have been discovered using reasonable diligence and on whether the eviden ce makes a different result probable on retrial.

We hold that the data from the sleep apnea machine could have been discovered using reasonable diligence. Defendant claims that he learned that th e machine stored the usage data about a month after his trial. He explained that “after the tr ial occurred,” he thought “maybe I should look into that.” And after he inquired, he discovered t hat the machine does log and store usage data. However, defendant fails to explain how using “rea sonable diligence,” he could not have made this same discovery before trial. Indeed, through reasonable diligence, we have no doubt that the evidence was discoverable before trial. Nothing prevented him from having this same epiphany earlier. Further, defendant had been using the m achine for many years and was, presumably, aware that his insurance required him to use the ma chine in order to maintain coverage. Defendant should have known, or at least suspected, that his doctor would have a way
to track his use of the machine so that it could be reported to his insurance agency.

We also conclude that the data from the machine does not make a not guilty verdict probable on retrial. The data appears to show that the machine was used from about 10 p.m. to 5 a.m. on the night of the break-in. This data, however, contain ed multiple “interruptions,” so there are breaks in the usage. Furthermore, defendant’s doctor called into question the accuracy of the machine’s internal clock and, contrary to defendant’s as sertions, revealed that the machine would record usage whether the mask was worn or not. The docto r conceded that it would be possible for a patient to manipulate the device so the data wou ld “erroneously reflect usage, when in fact no one was wearing the mask.” As a result, when a sked if the doctor was certain that the device was being worn by defendant during the one-hour period between 11:30 p.m. on May 29, 2014, and 12:30 a.m. on May 30, 2014, the doctor answer ed, “No.” We also note that any contention that defendant was at home using his sleep apnea machine at the time of the break-in is belied by defendant’s own admission to the investig ating officer that he indeed could have been in the area at that time because he may have turned h is vehicle around in the parking lot near midnight that night.

Consequently, because defendant cannot satisfy all four of the Cress elements, the trial
court did not abuse its discretio n when it denied defendant’s r equest for a new trial based on the newly discovered evidence.-6- Affirmed. 5

/s/ Jane M. Beckering /s/ David H. Sawyer /s/ Henry William Saad

5 In his initial brie f on appeal, defendant challenged the condi tion on defendant’s probation that prevented him from contacting Veterans Services. But after our remand, the trial court modified this probation condition, and defendant now withdraws the issue . Accordingly, we deem the issue moot, and no further consideration of the matter is neede d.

Defendant also filed a Standard 4 brief with the Court. Defen dant’s Standard 4 brief is almost incomprehensible as it lacks issue statements, citations to the record or caselaw, and pertinent analysis (legal or oth erwise). In sum, defendant fai ls to raise any appreciable legal
issues in his brief. Therefore , any issues raised have thus be en abandoned on appeal. See People v Kelly , 231 Mich App 627, 640-641; 588 NW2d 480 (1998).