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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 21, 2016

v No. 325895 Wayne Circuit Court MARCUS HIGHTOWER, also known as MARCUS ORLANDO HIGHTOWER, also known as MARCUS OL ANDO HIGHTOWER, LC No. 14-006314-FH

Defendant-Appellant.

Before: J ANSEN , P.J., and O’C ONNELL and R IORDAN , JJ.

P ER C URIAM

. Defendant appeals as of right h is bench trial convictions of p ossession of a firearm during the commission of a felony (“ felony-firearm”), MCL 750.227b, fe lon in possession of a firearm (“felon-in-possession”), MCL 750.224f, and possession of mariju ana, MCL 333.7403(2)(d). He was sentenced to two years’ imprisonment for his felony-firearm conviction; time served, which was one day in jail, for his felon-in-possession conviction; an d time served for his possession of marijuana conviction. We affirm.

I. FACTUAL BACKGROUND

On July 3, 2014, Detroit Police Officers Timothy Barr, Dietric h Spidell, and Jelani Jones were in a marked police car when they passed defendant near the corner of Forrer Street and Seven Mile Road in Detroit, Mic higan. Defendant was talking to another man, and Officers Barr and Spidell saw defendant holding a small, black, semiautomatic gun. The officers spoke of their observation and then decided to investigate the matter. While turning the patrol car around, the officers saw defendant enter and exit the driver’s side of a Chevy Traverse parked on Forrer Street. Defendant then walked t o the front of the same vehicle and opened the hood.

Officer Spidell approached defendant and, seeing that the gun was no longer visible, asked defendant if he had a concealed pistol license (“CPL”). Defendant said no. Officer Spidell noticed a bag of marijuana sticking out from defendant’ s pocket and then handcuffed him.

Meanwhile, Officer Jones approach ed Kimberly Vinson-Daniel, who was standing adjacent to the front passenger door of the Traverse. When the officer asked Vinson-Daniel if-2- she was armed, she said yes and gestured toward her purse, whic h was sitting on the front passenger seat of the vehicle. Jones retrieved a handgun from the purse, which was taken into evidence and then eventually admitted as an exhibit at trial. Subsequently, Vinson-Daniel produced a valid CPL. Police Officers Barr and Spidell testifi ed at trial that the gun retrieved from Vinson-Daniel was ident ical to the gun that they observed in defendant’s hand.

On the morning of defendant’s trial, the Detroit Police Depart ment produced recordings from the video and audio surveillance systems in the patrol car . The video and audio recordings were stored in separate files, and the recordings were not sync hronized. The video recording began when the officers initially saw defendant, but the availa ble audio recording did not begin until just before the officers ex ited their patrol car to inves tigate. Nevertheless, defense counsel stipulated to the admission of t he video and audio recordings a t trial.

At the close of the prosecution’s proofs, defense counsel made a “motion for acquittal,” which the trial court denie d. Ultimately, defendant was convic ted as indicated above.

He now appeals as of right.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that defense c ounsel provided ineffective ass istance when he failed to object to the admission of the po lice recordings or request an adjournment so that he could adequately review the recordings before trial and consult an ex pert. We disagree.

A. STANDARD OF REVIE W AND APPLICABLE LAW

Because defendant did not move for a new trial or a Ginther 1 hearing in the trial court, our review of his claim is limited to mistakes apparent from th e record. People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009); People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008). “A claim of ineffectiv e assistance of counsel is a mixed question of law and fact. A trial court’s findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective assis tance of counsel claim de novo.” Petri , 279 Mich App at 410, citing People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002).

The United States and Michigan Constitutions guarantee a defen dant the right to the effective assistance of counsel . US Const, Am VI; Const 1963, art 1, § 20. In order to prove that counsel provided ineffective assistance, a defendant must demon strate that (1) “ ‘counsel’s representation fell below an obj ective standard of reasonablene ss,’ ” and (2) defendant was prejudiced, i.e. , “ ‘there is a reasonable prob ability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” People v Vaughn , 491 Mich 642, 669- 671; 821 NW2d 288 (2012), quoting Strickland v Washington , 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “A defendant must also show that the result that did occur was

1 People v Ginther , 390 Mich 436, 443; 212 NW2d 922 (1973).-3- fundamentally unfair or unreliable.” People v Lockett , 295 Mich App 165, 187; 814 NW2d 295 (2012).

“Effective assistance of counsel is presumed,” and a defendant bears a heavy burden of proving otherwise. Petri , 279 Mich App at 410. The defendant must “overcome the strong presumption that counsel’s performance was born from a sound tr ial strategy.” People v Trakhtenberg , 493 Mich 38, 52; 826 NW2d 136 (2012). “Defense counsel is gi ven wide discretion in matters of trial strategy because many calculated risks may be necessary in order to win difficult cases.” People v Unger , 278 Mich App 210, 242; 749 NW2d 272 (2008). An effective trial strategy may i nclude a decision not to object t o proffered evidence. See id . at 253.

B. ANALYSIS

Defendant fails to establish that defense counsel’s performanc e fell below an objective standard of reasonableness. See Vaughn , 491 Mich at 669-671. First, we reject defendant’s claim that defense counsel was ineffective when he did not obje ct to the admission of the police recordings. Although the Detroit Police Department waited unti l the day of trial to produce the recordings, the record shows that defense counsel had the oppor tunity to review them before the trial began and that he was aware of the defects in the audio r ecordings. Additionally, it is apparent from the record that defense counsel chose to incorpor ate the defects into his trial strategy instead of objecting to t he admission of the recording s. After eliciting testimony from Barr and Spidell that they verbalized their observations of a g un in defendant’s hand, defense counsel argued during his motion for acquittal that the court c ould infer from the absence of this discussion in the audio recordi ngs that the conversation actual ly never occurred. Likewise, contrary to defendant’s claims on appeal, the record shows that defense counsel did, in fact, use the content of the recordings—or the lack thereof—for impeachme nt purposes. Thus, even though defense counsel’s approach ultimately proved unsuccessfu l, defendant has failed to overcome the presumption that defense counsel’s failure to obje ct constituted sound trial strategy. See Trakhtenberg , 493 Mich at 52; People v Matuszak , 263 Mich App 42, 61; 687 NW2d 342 (2004) (“A particular strategy does not constitute ine ffective assistance of counsel simply because it does not work.”).

We also reject defendant’s con tention that defense counsel was deficient for failing to request an adjournment to allow for further review of the recor dings and consultation with an expert. Defendant’s claim that counsel was unprepared to addre ss the content and timing of the audio and video recordings at trial is not supported by the rec ord. In his motion for acquittal, defense counsel reminded the court that he carefully questioned each officer about their conversations in the patrol car, and each officer expressly tes tified that there was a discussion about the fact that the officers saw defendant holding a gun. Defense counsel then emphasized that the audio recording included no such discussion. When the prosecutor opined that the audio clip did not begin until after the officers discussed the gun, defense counsel agreed, indicating that the prosecutor had fallen into his “trap.” He then conclu ded his argument by suggesting that the officers’ delay in activating the audio recording system un til after this pivotal conversation was too suspicious to be coinc idental. On this record, it appe ars that defense counsel specifically intended to incorporate the incomplete audio recording into his argument for acquittal. Utilizing such a defense theory did not require further review of the rec ording or the assistance of an expert.-4- Additionally, “[a]n a ttorney’s decision whether to retain witne sses, including expert witnesses, is a matter of trial strategy,” and, “in general, th e failure to call a witness can constitute ineffective assistance of counsel only when it depri ves the defendant of a substantial defense.” Payne , 285 Mich App at 190 (quotation marks and citation omitted). Here, defense counsel may have reasonably concluded that an expert’s testimon y could have undermined his argument that the officers’ dela y in activating th e audio recor ding was significan t in this case and his argument that the alleged conversation concerning the gun d id not occur given the absence of additional audio files. “This Court will not substitute its ju dgment for that of counsel regarding matters of trial strategy, nor will it assess counsel’s compete nce with the benefit of hindsight.” Petri , 279 Mich App at 411 (quotation marks and citation omitted). Further, defendant provides no explanation on appeal as to how an expert could have assiste d defense counsel or furthered his defense, as he merely states that “[t]his new evidence requ ired a review and possible evaluation by an expert. Appellant lost powerful impeachment e vidence that would have created a reasonable doubt and obtained a different verdict.” However, as previously discussed, defense counsel did, in fact, utilize the fact that footage was “missin g” from the police recordings for impeachment purposes. Thus, there is no basis for concluding t hat defense counsel’s failure to retain an expert witness deprived defendant of a substantial de fense. Payne , 285 Mich App at 190.

Finally, regardless of whether defense counsel’s decisions cons tituted sound trial strategy, defendant has failed to establish a reasonable probab ility that the outcome of the proceeding would have been different but for defense counsel’s performance. See Vaughn , 491 Mich at 669-671. Defendant offers nothing more than his specul ation that the “missing” audio recording could have revealed “powerful impeachment evidence.” There is nothing in the record to show that additional portions o f the audio recording even ex ist, much less that they include additional impeachment evidence. Rather, Officer Jones testifi ed that (1) the recording systems in the patrol car are independent systems, (2) the audio record ing system inside the vehicle is activated automatically when the emergency lights are activated , and (3) the video camera may begin recording even if the audio system has not been activated . Furthermore, if defense counsel had successfully objected to the admission of the recordings at trial, he would have forfeited his opportunity to rely on the absence of a “complete” recording fo r impeachment purposes.

Defendant has failed to establish that defense counsel’s repre sentation fell below an objective standard of reasonablen ess, or that any of the allege d deficiencies in counsel’s performance affected the outco me of defendant’s trial. See id . On this record, it is clear that defense counsel’s trial strate gy prompted his decision to stipu late to the admission of the police recordings and proceed with defen dant’s trial. Again, “[w]e wi ll not substitute our judgment for that of counsel on matters of trial strategy, [or] . . . use th e benefit of hindsight when assessing counsel’s performance.” Payne , 285 Mich App at 190.

III. CONCLUSION-5- Defendant has failed to demonstrate that defense counsel provi ded ineffective assistance when he failed to object to the a dmission of the police recordi ngs or request an adjournment.

Affirmed.

/s/ Kathleen Jansen /s/ Peter D. O'Connell /s/ Michael J. Riordan