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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 17, 2015

v No. 322629
Jackson Circuit Court JOHNNY TAYLOR, LC No. 13-003884-FC

Defendant-Appellant.

Before: G ADOLA , P.J., and H OEKSTRA and M. J. K ELLY , JJ.

P ER C URIAM

.

Following a jury trial, defendant was convicted of armed robbe ry, MCL 750.529. He was sentenced as an habitual offender, fourth-offense, MCL 769.12, to 20 to 50 years’ imprisonment. Defendant appeals as of right. B ecause defendant has not shown that he was denied the effective assistance of counsel, we affirm.

At trial, evidence showed that in the early morning hours of D ecember 26, 2013, an Admiral Gas Station in Jackson, Michigan was robbed. During th e robbery, the gas station attendant was struck in the head multiple times and forced at g unpoint to give the robber the money in the cash register. The robber then absconded with the money from the register, including a marked $2 bill. At trial, the clerk could not iden tify defendant as the robber because defendant was bundled up in a green coat that concealed his fac e. Likewise, there was video footage of the robbery, some of which was played for the jury, but the perpetrator’s face is not visible in the footage.

Police responding to the robbery were able to follow tracks fr om the gas station to the home of Heather Banks, a woman w ith whom defendant was acquaint ed. Even though it was after 2:00 am and her five small children were sleeping in the home, Banks testified that she let
defendant into her home to make a telephone call. Further, she testified that when police arrived, she told defendant that police were looking for him, at which t ime defendant ran into Banks’s bedroom and hid. Banks gave police permission to enter the hom e. However, when ordered to exit the bedroom by police, defendant refused, prompting police to deploy a police dog to find
defendant in the closet of Bank’ s bedroom. The dog latched on to defendant’s arm; but, because defendant was wearing several la yers of clothing, the dog did n ot puncture defendant’s skin. In particular, defendant was weari ng a green jacket like the jacke t worn by the gas station robber.-2- After the dog apprehended defendant, defendant was taken to th e hospital to make sure he was uninjured. On the way to the hospital, defendant waived his Miranda 1 rights and, in response to police questioning, defendant stated that “the gun is not in the house.” Additionally, when police searched the bedroom where defendant had been hidin g, in the box spring of Banks’s bed, near a pair of read ing glasses on the floor that d id not belong to Banks or her family members, police found a BB gun that looked like a handgun as we ll as the money from the robbery, including the tracer $2 bi ll. At the hospital, defenda nt told police that he needed his reading glasses to read some documents. As noted, the jury con victed defendant of armed robbery. Defendant now appeals as of right.

On appeal, the only issues before us are various claims of ine ffective assistance of counsel, some of them raised by appellate defense counsel in de fendant’s brief on appeal and others raised by defendant in his Standard 4 brief. Defendant failed to move the trial court for an evidentiary hearing or a new trial, meaning his claims of ineff ective assistance are unpreserved and our review is limited to mistakes apparent on the record. People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008). Claims of ineffective assistance of counsel are mixed questions of
law and fact. People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). Findings of fact by the trial court, if any, are reviewed for clear error, and ques tions of constitutional law are
reviewed de novo. Id.

Under the standard set forth in Strickland

, 2 to establish a claim of ineffective assistance of counsel, a defendant must show that: “(1) that counsel's re presentation fell below an objective standard of reasonableness, and (2) “that there is a reasonable probability that, but for counsel's unprofessional errors, the resul t of the proceeding would have been different.” People v Douglas

, 496 Mich 557, 592; 852 NW2d 587 (2014) (quotation marks and cit ation omitted). “Effective assistance of counsel is presumed, and the defendant bears a he avy burden of proving
otherwise.” People v Lockett , 295 Mich App 165, 187; 814 NW2d 295 (2012). Trial counsel has “great discretion” in matters of trial strategy, People v Pickens , 446 Mich 298, 330; 521 NW2d 797 (1994), and this Court will not substitute its judgmen t for counsel on matters of trial
strategy, People v Rockey , 237 Mich App 74, 76; 601 NW2d 887 (1999). “Decisions regardi ng what evidence to present and whether to call or question witnes ses are presumed to be matters of trial strategy[.]” People v Davis , 250 Mich App 357, 368; 649 NW2d 94 (2002). Further, failure to call a witness only constitutes ineffective assistance of co unsel if it deprives the defendant of a
substantial defense. People v Russell , 297 Mich App 707, 716; 825 NW2d 623 (2012). However, defense attorneys always have a “duty to make reasonab le investigations or to make a reasonable decision that makes p articular investigations unnece ssary,” and strategic choices “made after less than complete investigation are reasonable pre cisely to the extent that reasonable professional judgments support the limitations on in vestigation.” People v Trakhtenberg , 493 Mich 38, 52; 826 NW2d 136 ( 2012) (quotation marks and cit ation omitted). Finally, a defendant bears the burden of establishing the factu al predicate of his claim, meaning

1 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

2 Strickland v Washington , 466 US 668, 104 S Ct 2052, 80 L Ed 2d 674 (1984).-3- that, “[t]o the extent his claim depends on facts not of record , it is incumbent on him to make a
testimonial record at the trial court level . . . .” People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999) (citation omitted).

In this case, on appeal, defenda nt first argues that trial cou nsel was ineffective for failing to investigate and for failing to prepare for trial. Specifica lly, defendant asserts that counsel did not meet with defendant an adequate number of times. According to defendant, counsel also failed to investigate the possibility that Banks’s 17-year-old son was the gas station robber. Defendant claims that, before tri al, he told his trial counsel that he was asleep on Banks’s couch
when Banks’s son returned to the house at around 2 a.m. He now asserts that counsel should have investigated potential testimony from Banks’s son regardin g his activities that night, the presence of guns in the home, and whether he had entered the ro om where the items from the robbery were found. Defendant also claims that counsel failed to procure evidence (or at least
failed to share that evidence w ith defendant), including photog raphs of footprints in the snow, the video footage of the robbery showing all the camera angles, photographs of defendant’s arm after he was bitten by the dog, photographs of the green coat w orn by defendant, and photographs of the $2 bill found in Banks’s home.

As noted, defendant failed to move the trial court for a new trial or for an evidentiary hearing. As a result, there is no record support for defendant ’s assertion that counsel failed to conduct an investigation, that coun sel failed to meet with defe ndant a reasonable amount of times, that counsel failed to obtain evidence or to share it wi th defendant, or that Banks’s son possessed guns, that he returned home late to the house, or tha t he had an opportuni ty to enter the room where police discovered e vidence of the robbery. Cf. People v Carbin , 463 Mich 590, 601; 623 NW2d 884 (2001). To the contrary, by defendant’s own admis sions, counsel met with him
before trial and defendant sent additional communications to hi s attorney via letter. Our review of the record also shows that, as a general matter, defense counsel made a detailed demand for discovery, and that at trial counsel was prepared to cross-exam ine witnesses and to present closing arguments. 3 While counsel may not have proceeded with the strategy now ad vanced by defendant on appeal, there is nothing in the record to support defendant’s assertions that counsel’s strategic decisions w ere made without adequate invest igation or that they were unreasonable in light of counsel’s pre-trial investigations. S ee Trakhtenberg , 493 Mich at 52.

3 For example, counsel argued during closing (1) that defendant could not be identified from the video of the robbery, (2) that t he robber did not wear gloves a nd yet no fingerprint evidence had been introduced to tie defendant to the crime, (3) that police made no effort to match defendant’s shoes to the footprints they followed to Banks’s house, (4) tha t there were no telephone records to support Banks’s testimony that defendant made calls while at her house, and (5) that the green coat supposedly worn by defendant did not have dog marks as one would expect given the manner of defendant’s apprehension. In these circumstances, co unsel maintained that the prosecutor had shown nothing more than that defendant was in Ba nks’s house and bitten by a dog.-4- Moreover, with respect to Banks’s son in particular, the recor d evidence does not support
the defense that defendant now claims his counsel should have i nvestigated and presented at trial. That is, contrary to de fendant’s assertions on appeal, Banks denied having a gun in the home and, when defense counsel asked Banks at trial whether any of her children had “been out and come back in that night,” she indicated that they had all s tayed in all night. Police confirmed that Banks’s children were in bed when they entered the home an d that the children had to be removed to squad cars for their safety while police tried to ro use defendant from his hiding place in the closet. In other words, on the record presented, defend ant has not established the factual predicate of the defense he now claims counsel should have inve stigated and pursued. See Hoag , 460 Mich at 6. And, consequently, defendant has not shown co unsel performed below an accepted standard of reasonablenes s or that he was prejudiced b y counsel’s performance.

We note that defendant filed an untimely motion in this Court to remand for an evidentiary hearing and, in s upport of that motion, defendant a ttached his own affidavit, attesting to counsel’s failure to provide him with various pieces of evid ence and describing a conversation
in which he told counsel his theories about Banks’s son. Howev er, defendant’s request for a remand was denied and, because defendant’s affidavit is not par t of the lower court record, we
need not consider it at this time. See People v Horn , 279 Mich App 31, 38; 755 NW2d 212 (2008); People v Watkins , 247 Mich App 14, 31; 634 NW2d 370 (2001).

Moreover, even if we were to consider defendant’s affidavit, h e cannot establish his
ineffective assistance claim base d on his attestations in that document. First, although defendant
indicates that he told counsel h is suspicions regarding Banks’s son, he has not made an offer of proof from his attorney, Banks, orBanks’s son to establish wha t efforts, or lack thereof, were made by his attorney to investigate this lead. Cf. Carbin , 463 Mich at 601. Consequently, even considering defendant’s affidavit, he has not established the f actual predicate of his claim and he has not overcome the presumption that counsel provided effectiv e assistance. Second, it is clear that defendant has failed to make a showing of prejudice. Defe ndant in fact makes no effort on appeal to explain how counsel’s purported failures could be con strued to have affected the outcome of the proceeding. And, in contrast to defendant’s thr eadbare allegations against Banks’s son, the evide nce of defendant’s guilt is overwhelming. Shortly after the robbery, police followed fresh footprints from the gas station to Banks’s home where they found defendant hiding in a closet. The cash from the robbery was found in the room where defendant was hiding, defendant was bundled up in several layers of clothing, including a green jacket consistent with that worn by the gas station robber, and defend ant obliquely admitted his knowledge of the gun used in the r obbery when he told police th at “the gun is not in the house.”
Given this considerable evidence of defendant’s guilt, we canno t conclude that further investigation or additional pre- trial preparation by counsel inthe manner proposed by defendant would have been reasonably likely to affect the outcome of the proceedings. Thus, defendant
has not shown that he was denie d the effective assistance of co unsel.

In a related argument, defendant also argues on appeal that co unsel was ineffective for failing to call any supporting w itnesses at trial. Specificall y, defendant claims counsel should have called (1) an “internet exp ert” to locate photographs on F acebook that depicted Banks’s son holding guns, (2) a medical expert to testify that defendant co uld not have travelled the distance from the gas station to Banks’s house due to defendant’s previo us gunshot wound and his restless leg syndrome, (3) Banks’s son to question him about hi s activities the night of the-5- robbery as well as, more generally, his possession of guns, (4) defendant’s brother to testify that he dropped defendant at Banks’s home at 11:30 p.m. that evening , and (5) Banks’s cousin to undermine Banks’s claim that she was only minimally acquainted with defendant when in fact her cousin would testify that Banks had known defendant since 1 994.

Initially we note that defendant has failed to establish the f actual predicate of his claim in
relation to these witnesses that defendant now claims counsel s hould have called. First, there is absolutely no indication in the lower court record, or even in the materials supporting defendant’s motion for remand, that an internet expert could ha ve uncovered photographs of
Banks’s son on Facebook or that a medical expert would have tes tified in defendant’s favor if called. Absent some offer of proof regarding how such experts might have testified, defendant has not meant his burden of establishing the factual predicate of his claim. Cf. People v

Ackerman , 257 Mich App 434, 455; 669 NW2d 818 (2003). Second, there is likewise a lack of
evidence to establish how Banks’s son would have testified if c alled, meaning defendant has not shown that such testimony would have been favorable to defendan t or that its omission deprived
defendant of a substantial defense. See Russell , 297 Mich App at 716. Finally, with respect to Banks’s cousin and defendant’s brother, there is no record supp ort for the testimony defendant now claims they would have provided. It is true that defendant submitted affidavits from these
individuals in relation to his untimely motion for a remand, bu t such documents are not properly before us on appeal because they are not part of the lower court record. See Horn , 279 Mich App at 38; Watkins , 247 Mich App at 31.

In any event, even considering the affidavits produced by defe ndant on appeal, it is clear that defendant cannot establish that he was prejudiced by couns el’s failure to call the various witnesses he now mentions on appeal. As noted, there is no evi dence that testimony from an internet expert, a medical expert, or Banks’s son would have fa vored defendant, meaning that defendant has not shown a reasonably probability that, but for counsel’s failure to call these witnesses, the result of the proceedings would have been differ ent. Cf. Ackerman , 257 Mich App at 455-456. With respect to testimony from defendant’s bro ther, he was not a witness to the robbery itself and his claim to have dropped defendant at Banks ’s house at 11:30 does not provide defendant with any sort of alibi for the robbery at 2:0 0 a.m. Rather, this evidence would only further confirm that defenda nt was in relatively close pro ximity to the gas station on the night of the robbery. Accordingly, we cannot conclude that cou nsel’s failure to present this testimony affected the outcome of the proceedings. With respec t to testimony from Banks’s cousin, it appears defendant believes she could have testified regarding the length and nature of Banks’s relationship with defendant for the purpose of impeachi ng Banks’s claim that she did not know defendant well. But, any testimony on this issue woul d likely have been inadmissible because it would have involved impeachment of a witness’s credi bility though the use of extrinsic evidence regarding a collateral issue, which is prohi bited by MRE 608(b). See People v

Rosen , 136 Mich App 745, 758; 358 NW2d 584 (1984). Further, given t hat the nature of defendant’s relationship with Banks is a tangential issue whichdid not bear directly on defendant’s guilt or innocence, w e fail to see how testimony fr om Banks’s cousin on this issue
could have created a reasonable probability of a different outc ome. Thus, defendant has not
shown he was denied the effective assistance of counsel.

Next, defendant argues that trial counsel was ineffective withrespect to his crossexamination of Banks. In particular, defendant asserts that co unsel failed to challenge Banks’s-6- credibility. Although defendant frames his argument in terms o f counsel’s cross-examination of Banks, he does not propose any questioning that defense counsel should have pursued or explain how such questioning would have created a reasonable probabilit y of a different outcome. Instead, in support of this claim that counsel failed to challe nge Banks’s credibility, defendant rehashes his earlier arguments regarding testimony Banks’s cous in might have provided with respect to defendant’s relations hip with Banks and defendant cl aims that he was naked when bitten by the police dog, a fact w hich defendant claims could h ave been proven with evidence showing the wound caused by the dog bite and DNA testing to est ablish that his blood was not on the green coat.

To the extent defendant argues this evidence should have been presented to discredit Banks, his arguments in this respect are without merit because these claims are not factually supported by the lower court record. See Hoag , 460 Mich at 6. Testimony from police officers at trial indicates that defendant was fully clothed, and in fac t wearing several layers of clothing, when bitten by the dog during his apprehension in Banks’s home. Even if we were to consider the materials defendant offers on appeal, defendant makes no of fer of proof to support his claim that DNA testing of the coat would have been favorable to his d efense or that he was unclothed when apprehended. Therefore, counsel cannot be considered inef fective for failing to introduce evidence on these issues. Further, as discussed supra , impeachment of Banks through the presentation of extrinsic evidence from her cousin regarding a collateral issue would have been improper under MRE 608(b). See Rosen , 136 Mich App at 758. And, given the overwhelming evidence presented at trial, im peachment of Banks on this colla teral issue would not have created a reasonable probability of a di fferent outcome. Moreover, we note that more generally, contrary to defendant’s arguments on appeal, counsel did not fail to cha llenge Banks’s credibility, but in fact specifically argued during cl osing that, among other short comings, Banks’s claim to have let a near-stranger into her home at 2:00 in the morning was “suspi cious.” Additionally, counsel did cross-examine Banks, and defendant has not overcome the presump tion that trial counsel exercised reasonable professional judgment in his decisions reg arding how to question Banks.

See Davis , 250 Mich App at 368. On the whole, defendant has not shown t hat counsel’s treatment of Banks’s testimony was unreasonable or that, but fo r counsel’s failure, there was a reasonable probability of a different outcome. Thus, defendant has not shown that he was deprived of the effective assistance of counsel.

In his Standard 4 brief, defendant also argues that he receive d ineffective assistance of counsel. Defendant largely reiterates the same arguments raise d in appellate counsel’s brief, which we reject for the same reasons discussed supra . Defendant’s additional arguments are
without merit for the reasons discussed below.

As a preliminary matter, we note that defendant’s reliance on United States v Cronic , 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657 (1984) and related cases is misplaced. Defendant’s case does not fit within the narrow category of cases in which preju dice is presumed as described in

Cronic , 466 US 648. That is, contrary to defendant’s argument on app eal, the record evinces that defense counsel investigated the case and subjected the prosecu tion’s case to meaningful adversarial testing. Defendant’s claims to the contrary, as de tailed below, are premised on counsel’s purported failures at sp ecific points in the proceedi ngs, and such claims are properly analyzed under Strickland , not Cronic . See People v Frazier , 478 Mich 231, 243-244 & n 10;-7- 733 NW2d 713 (2007). Consequently, we review all of defendant’ s claims under the Strickland
standard set forth supra

.

First, defendant argues that trial counsel was ineffective for failing to give an opening statement. “[T]he waiver of an opening statement involves ‘a s ubjective judgment on the part of trial counsel which can rarely, i f ever, be the basis for a suc cessful claim of ineffective assistance
of counsel.’ ” People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009). Here, there is nothing in the record to overcome the presumption that counsel’ s decision not to give an opening
statement was an exercise of s ound trial strategy and there is no basis to conclude that counsel’s
failure to do so affected the outco me of the lower court procee dings. Cf. id.

Second, defendant argues that trial counsel failed to obtain a nd test various pieces of evidence. As noted, defense counsel made a detailed request fo r discovery, and the lower court record does not establish what evidence trial counsel actually obtained or failed to obtain. Thus,
defendant has not established the factual predicate of his clai m, Hoag , 460 Mich at 6, and he has not shown that counsel was objectively unreasonable for failing to obtain evidence. Regardless, defendant has not established that he was prejudiced by the all eged failures of counsel with respect to the various pieces of evidence identified in his bri ef. Defendant has not presented any
information about what tests on the evidence would have shown o r how the evidence or tests would support his defense. Further, trial counsel may have mad e the reasonable decision not to have the evidence tested to avoid creating any additional incri minating evidence against defendant. In fact, during closing arguments, trial counsel us ed the lack of testing to argue in defendant’s favor, highlighting that the prosecution did not pr ovide any evidence that the footprints matched defendant’s shoes, that there was no fingerp rint evidence tying defendant to the robbery, and that the green jacket, if worn by defendant, w ould have had puncture holes in it from a dog bite. On this record, defendant failed to overcome the presumption that trial counsel’s decision to forego testing of items was sound trial s trategy. Davis , 250 Mich App at

368.

Third, in his Standard 4 brief, defendant argues that trial co unsel failed to cross-examine witnesses with respect to the co lor of the jacket defendant wor e the night of the robbery in light of testimony at the preliminary ex amination that defendant wore a brown jacket that evening. Contrary to defendant’s claim, more fully, at the preliminary e xamination, there was testimony that defendant’s jacket was reversible and one side was dark gr een—which was the same “color and design of the jacket that was visible from the video survei llance.” Trial counsel may not have wanted to highlight this fa ct. Defendant has not overcome the presumption that this decision was sound trial strategy. Davis , 250 Mich App at 368. Defendant also asserts various other problems with the cross-examination conducted by defense counsel in relation to the green coat, which we have reviewed and which are not supported by the record. Defense counsel in fact questioned witnesses about t he coat, meaning that there is no factual predicate for these
claims. Hoag , 460 Mich at 6. Defendant has not overcome the presumption th at counsel’s questioning of witnesses was a matter of trial strategy. See Davis , 250 Mich App at 368.

Fourth, defendant also argues th at trial counsel failed to off er the defense that none of the evidence from the robbery was found on defendant. However, thi s point was clear from the testimony. The record plainly demonstrated that the money and gun were found inside the box-8- spring, and there was no contention that the items were found o n defendant. Trial counsel’s decision not to raise or dispute an obvious point was a matter of trial strategy. See id.

In sum, defendant has not demons trated that counsel’s performa nce was deficient or that, but for counsel’s errors, there was a reasonable probability of a different outcome. Consequently, defendant has not e stablished his ineffective ass istance of counsel claim. See Douglas , 496 Mich at 592.

Affirmed.

/s/ Michael F. Gadola
/s/ Joel P. Hoekstra /s/ Michael J. Kelly