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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 26, 2016

v No. 323712 Wayne Circuit Court DAVID LEE SIMPSON, LC No. 13-009102-FC

Defendant-Appellant.

Before: R IORDAN , P.J., and J ANSEN and F ORT H OOD , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of fi rst-degree premeditated murder, MCL 750.316(1)(a), first-degree felony murder, MCL 750. 316(1)(b), and possession of a firearm during the commission of a felony (felony-firearm), M CL 750.227b. The trial court sentenced defendant to life imprisonment for the first-degree p remeditated murder conviction 1 and two years’ imprisonment for the felony-firearm conviction. We affirm.

Defendant argues that he was deprived of his constitutional ri ght to the effective assistance of counsel. We disagree. To preserve a claim of in effective assistance of counsel, a defendant must make a motion for a new trial or an evidentiary hearing with the trial court. People v Heft , 299 Mich App 69, 80; 829 NW2d 266 (2012). Defendant never mo ved for a new trial or a Ginther 2 hearing in the trial court. Defendant filed a motion for a Ginther hearing with this Court, which was denied for failure to persuade the Court of a necessity for a remand. 3 When an ineffective assistance of counsel claim is unpreserved, “this Court’s review is limited to mistakes apparent from the record.” Id.

1 The judgment of sentence reflec ts both a first-degree premedit ated murder conviction and a felony-murder conviction. However , the trial judge imposed a s ingle sentence to reflect that defendant was convicted of only one count of first-degree murde r, supported by two separate theories.

2 See People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).

3 People v Simpson , unpublished order of the Court of Appeals, entered December 2 9, 2014 (Docket No. 323712).-2- “To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney’s performance fell below an objective standard of reas onableness under prevailing professional norms and that this performance caused him or her prejudice.” People v Nix , 301 Mich App 195, 207; 836 NW2d 224 (2013), citing People v Armstrong , 490 Mich 281, 289-290; 806 NW2d 676 (2011). “To demonstrate prejudice, a defendant mu st show the probability that, but for counsel’s errors, the result of the proceedings would h ave been different.” Nix , 301 Mich App at 207. Defendant bears the burden of establishing the fac tual predicate for his claim. People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001).

Specifically, defendant asserts that his trial counsel failed to adequately investigate defendant’s alibi witnesses, failed to file a notice of intent to present an alibi defense pursuant to MCL 768.20(1), and failed to present the testimony of alibi wit nesses at trial. Defendant’s claims fail for several reasons.

First, defendant has not shown that defense counsel failed to adequately investigate defendant’s purported alibi defense. “Trial counsel is respons ible for preparing, investigating, and presenting all substantial defenses . . . ,” meaning defens es that may have affected the outcome of the trial. People v Chapo , 283 Mich App 360, 371; 770 NW2d 68 (2009). Defense counsel has a duty to undertake reasonable investigations, and any choice to limit an investigation is reasonable “to the extent that reasonable prof essional judgments support the limitations on investigation.” People v Trakhtenberg , 493 Mich 38, 52; 826 NW2d 136 (2012). The failure to conduct an adequat e investigation constitutes in effective assistance if it undermines the confidence in the outcome of the trial. People v Russell , 297 Mich App 707, 716; 825 NW2d 623 (2012).

Here, the record is largely sil ent on whether counsel failed t o investigate defendant’s alibi defense. Significantly, defendant has not presented affidavits from those witnesses he claims would have supported his alibi defense. While there was mentio n on the record that defendant’s initial appointed attorney had received names and contact infor mation for several of these witnesses from defendant and defendant’s sister, the record doe s not reflect that defendant’s attorneys failed to contact or investigate those witnesses, as defendant claims. Indeed, it is equally likely that defense couns el interviewed the witnesses, all of whom were professed crack addicts, and decided not to call them to the stand based on cre dibility issues or because their testimony would have been inconsi stent with defendant’s testimo ny. Even assuming the investigation was unreasonable, defendant does not show that fa ilure to conduct a reasonable investigation undermined the outcome of trial, id. , or a reasonable likelihood that the result of the proceedings would have been different but for counsel’s alleged failing, Nix , 301 Mich App at 207. Again, defendant bears the burden of establishing a factu al predicate for his claim, Carbin

, 463 Mich at 600, and absent affidavits supporting the viability of his proffered defense, this Court is unable to determine that counsel’s alleged failure to investigate prejudiced defendant.

Second, defense counsel’s failure to file a notice of intent t o present an alibi defense did not constitute ineffective assistance of counsel. When an inef fective assistance of counsel claim is premised on counsel’s failure to file notice under MCL 768.2 0(1) and consequent failure to present an alibi witness, the defendant must demonstrate that t he witness would have given favorable alibi testimony. People v Pickens , 446 Mich 298, 327; 521 NW2d 797 (1994). Again, without affidavits or statements from defendant’s purported ali bi witnesses, this Court is unable-3- to determine whether their testimony would have supported defen dant’s alibi defense. Moreover, defense counsel’s failu re to file a notice of intent to present an alibi defense did not prevent him from offering testimony regarding an alibi defense at trial. It is true that, before a defendant can present an alibi defense, he must ordinarily serv e notice pursuant to MCL 768.20(1). However, if proper notice under the statute is not provided, the trial court may , in its discretion, preclude alibi testimony. People v Travis , 443 Mich 668, 679–680; 505 NW2d 563 (1993). The trial court is not required to preclude alibi test imony when notice has not been filed, especially where, as here, the prosecution raises no objection to the presentation of alibi testimony by the defense. Moreove r, defendant was able to pres ent his alibi te stimony, and the jury was properly instructed to consider that defense and find defendant not guilty if it had a reasonable doubt as to defendant’s whereabouts at the time of t he crime. Accordingly, defendant’s claim fails.

Finally, we reject defendant’s claim that his attorney was ine ffective for failing to call his proposed alibi witnesses. The decision “to call or question wi tnesses is presumed to be [a] matter[] of trial strategy” and will only constitute ineffectiv e assistance when it deprives defendant of a substantial defense. Russell , 297 Mich App at 716. “A defendant must meet a heavy burden to overcome the pr esumption that counsel employed effective trial strategy.” People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009). Defendant cannot overcome the presumption that defense counsel employed effective trial s trategy by not calling the proposed alibi witnesses. At trial, defense counsel chose to f ocus on attacking the sole eyewitness’s credibility as a crack addict who had a motive to shoot the victim similar to defendant’s motive. In so doing, defense counsel attempted to highlight discrepancies between the eyewitness’s various statements and between her trial testi mony and the physical evidence presented. This approach const ituted reasonable trial strategy . In addition, defendant still provided his alibi defense by way of his own testimony that he was at a friend’s house smoking crack with a number of individua ls at the time of the shooting. We do not agree that there was a reasonable probability that bolstering defendant’s alibi with t estimony of professed crack addicts would have affected the outcome of his case, and his unsupporte d assertions are insufficient to overcome the presumption of trial strategy employed by defense counsel in not calling the witnesses. Further, defendant cannot show that he was prejudic ed in light of the strong evidence presented against him at trial, including eyewitness testimony and corroborating physical evidence.

Affirmed.

/s/ Michael J. Riordan /s/ Kathleen Jansen /s/ Karen M. Fort Hood