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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 10, 2017

v No. 328807 Genesee Circuit Court JAMES CLARENCE DOCK, JR., LC No. 15-036866-FH

Defendant-Appellant.

Before: B OONSTRA , P.J., and C AVANAGH and K. F. K ELLY , JJ.

P ER C URIAM

. Defendant appeals by right his conviction, following a jury tr ial, of possession with intent to deliver less than 50 grams of heroin (possession with intent to deliver), MCL 333.7401(2)(a)( iv ). 1 The trial court sentenced him to 4 to 20 years’ imprisonment. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises from a traffic stop. Michigan State Troopers Jonathan Miller and Louis Velaga stopped defendant’s vehicle on Dort Highway for improper ly travelling in the left lane and appearing not to have a valid registration sticker. Defend ant was driving the vehicle with a passenger. Defendant could not produce a valid driver’s licens e. Defendant consented to a search of his person and vehicle for weapons and drugs. Velaga found a plastic bag in defendant’s pocket that laboratory testing revealed to contain 9.4 grams of heroin. Velaga also found a scale between the driver’s seat and the center console.

At trial, Velaga testified regarding his training and educatio n regarding narcotics, and to his opinion that the combination of finding heroin and a scale together indicated narcotics trafficking. Sergeant Bradly Ross of the Michigan State Police was qualified as an expert in heroin trafficking in the Gen esee County area, and opined from the way the heroin was packaged and concealed, and the fact that defendant also had a digital s cale, that the heroin was possessed

1 Defendant was originally also c harged with possession with int ent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)( iv ), but that charge was di smissed before trial.-2- for sale. He testified that his conclusion was strengthened by the amount of heroin, which he characterized as unusua l for personal use, a s well as the fact that no heroin use paraphernalia was found with defendant.

Defendant was convicted and sen tenced as described above. Thi s appeal followed.

I. BATSON CHALLENGE

Defendant first argues that the prosecution improperly used a peremptory challenge to exclude Juror Hudson from the jur y based on race, in violation of Batson v Kentucky , 476 US 79, 89; 106 S Ct 1712; 90 L Ed 2d 69 (1986). We disagree.

Defense counsel challenged th e dismissal of Hudson during voir dire. “A defendant’s preserved challenge to the prose cutor’s use of a peremptory cha llenge on the basis that it violated the Equal Protection Clause is a mixed question of fact and law .” People v Armstrong , 305 Mich App 230, 237; 851 NW2d 856 (2014), citing People v Knight , 473 Mich 324, 342; 701 NW2d 715 (2005).

“A prosecutor violates the Equal Protection Clause of the Four teenth Amendment of the United States Constitution when he or she uses a peremptory cha llenge to remove a prospective juror solely because of the juror’s race.” Armstrong , 305 Mich App at 237, citing Batson , 476 US at 89 and Knight , 473 Mich at 335. A three-step process is used “to determine whether the defendant has shown impermissible discrimination.” Armstrong , 305 Mich App at 237-238. First, the defendant must establ ish a prima facie case of discr imination. Id . at 238. 2 Second, if the defendant establishes a pri ma facie case, the burden shifts to the prosecutor to provide a raceneutral explanation for use of the peremptory challenge. People v Bell , 473 Mich 275, 283; 702 NW2d 128 (2005), mod 474 Mich 1201 (2005), citing Batson , 476 US at 97. “Third, the trial court must determine whether the prosecutor’s explanation is a pretext for discrimination.” Armstrong , 305 Mich App at 238, citing Batson , 476 US at 98 and Knight , 473 Mich at 337-338.

This Court reviews the second Batson step de novo. People v Tennille , ___ Mich App ___, ___, ___ NW2d ___ (2016) (Docket No. 323059); slip op at 5 , citing Knight 473 Mich at 343. “The third step in the Batson analysis requires the trial court to determine whether the challenger has sustained his bur den of demonstrating a racial m otivation for the challenged peremptory strikes. This consti tutes a question of fact review ed for clear error.” Tennille , ___ Mich App at ___; slip op at 5, citing Knight , 473 Mich at 344.

2 Defendant does not address whether he has satisfied step one o f the Batson analysis. Regardless, “ ‘[o]nce a prosecutor has offered a race-neutral e xplanation for the peremptory challenges and the trial court has ruled on the ultimate questi on of intentional discrimination, the preliminary issue whether the defendant had made a prima facie showing becomes moot.’ ” Tennille , ___ Mich App at ___; slip op at 6, quoting Hernandez v New York , 500 US 352, 359; 111 S Ct 1859; 114 L Ed 2d 395 (1991), and Bell , 473 Mich at 296.-3- With regard to step two, the prosecutor articulated race-neutr al reasons for using a peremptory challenge to exclude Hudson. To satisfy this step, an “explanation must be related to the particular case being tried and must provide more than a ge neral assertion in order to rebut the prima facie showing.” Bell , 473 Mich at 283, citing Batson , 476 US at 97-98. The explanation must also be “clear and reasonably specific,” but “ so long as the reason is not inherently discriminatory, it suffices.” Tennille , ___ Mich App at ___; slip op at 6-7 (quotation marks and citations omitted).

In response to defense counsel’s claims that the prosecution e xcused Juror Hudson because he is a young African-American male, the prosecutor exp lained that she peremptorily challenged Hudson not because of his race, but because he was n ot very responsive or engaged. Specifically, she stated:

There were some responses that he gave. At one point in time h e laughed, did not feel as though he needed to offer a response for laughing at a question. I didn’t think that he was very responsive throughout the whole time. I didn’t feel like he was engaged, and that’s why I asked him to be removed from the jury. Not because he’s a young African[-]American male, but because I did n’t think that he was necessarily engaged or paying attention, and I don’t think that that’s an appropriate person to be on this jury.

This explanation was clear and specific. The prosecutor justif ied her exclusion of Juror Hudson by providing examples of his beh avior. Further, her stated rea sons were not inherently discriminatory because they wer e based on Hudson’s behavior rat her than his race.

To satisfy step three of the Batson analysis, the trial court should examine the credibility of the prosecutor’s race-neutral explanation by considering the prosecutor’s demeanor, the reasonableness of the explanati on, and “whether the proffered r ationale has some basis in accepted trial strategy.” Bell , 473 Mich at 283 (quotation marks and citation omitted). In s o doing, it must make findings of fact. Tennille , ___ Mich App at ___; slip op at 6. We conclude that the trial court did not err when it concluded that the pro secutor’s stated explanation for dismissing Hudson was not a pret ext for discrimination.

In making its determination, the trial court considered the cr edibility of the prosecutor’s proffered explanation, and made findings of fact. Specifically , the court stated:

All right. Let me just indicate I think that I am sensitive t o those issues having sat here for 19 years now , the issue of race. Based upo n I suspects [sic] it’s hundreds of cases now that I think about it that I’ve trie d I have to say I did not think he was particularly responsive in an appropriate way to some of the questions, and didn’t seem to unde rstand some of the explanatio ns that were given.

So, I don’t think that this record and the transcript would sh ow that he was singled out because of his race. I think he had other issues t hat were of some concern to the prosecutor. So, t hat’s all ther e is on that.-4- The record supports the trial court’s findings. During voir d ire, the following exchange took place between the p rosecutor and Hudson:

[ Prosecutor ]: In terms of witnesses, do you think that you have to like a person to believe what they say? No? Is it possible that you might hear from a witness, you may not like that witness, but you still believe w hat it is that they’re testifying to? Okay. If you didn’t like someone, is there any one that would automatically disregard their testimony? Juror in seat number four, did you have any thoughts on that?

Juror Hudson : No.

[ Prosecutor ]: No. Okay. Just a question? Okay. You don’t have anything to add on that? Okay. J uror in seat number six?

Further, when asked if he would be comfortable working with oth er people to reach a conclusion in the case, Hudson admitted to being stubborn. After some bac k-and-forth, the exchange continued as follows:

[ Prosecutor ]: Okay. If you reached a conclusion, would you have an inability to sit down and listen to other points of view, hash it out, work through it rationally, or would you just be s et in your ways and not willi ng to--

Juror Hudson : If I don’t agree with the majority, I’m just not going to agree with it.

[ Prosecutor ]: Okay, but are you -- would you still listen to other people ’s points of view? I’m not asking you if you would let them bully you into a decision one way or the other.

Juror Hudson : Yeah, I’ll listen.

Considering these exchanges, it was not unreasonable for the p rosecutor to believe that Hudson would not have been a responsive or engaged juror. It a ppears that he refused to elaborate on answers, despite the prosecutor prompting him to d o so, and may have had a difficult time working with others to reach a verdict. Thus, the court did not err in finding that the prosecutor’s explanation for peremptorily challenging Juror Hudson was not a pretext for discrimination. We also note that the prosecutor also perempto rily challenged Juror Curtis, who provided similar answers to those given by Hudson regarding the willingness to work with others. Although Curtis’s race is not determinable from the re cord, defendant does not challenge his exclusion from the jury.

II. DRUG TRAFFICKING TESTIMONY

Defendant also argues that the trial court erred by allowing V elaga to testify regarding the scale found in defendant’s possession and the lack of use parap hernalia, without being qualified as an expert in drug trafficking, and by allowing Ross to testi fy about preserving evidence for fingerprint and DNA testing withoutbeing qualified as an exper t in evidence preservation.-5- Further, defendant asserts that the trial court erred by qualif ying Ross as an expert in the sale, trafficking, and distribution of heroin absent a showing that s uch expert testimony met the requirements of MRE 702. We disagree.

To preserve a claim of eviden tiary error, “a party opposing th e admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal.” People v Aldrich , 246 Mich App 101, 113; 631 NW2d 67 (2001), citing MRE 103(a)( 1) and People v Grant , 445 Mich 535, 545, 553; 520 NW2d 123 (1994). Defense counsel did not object to Velaga’s testimony regarding the scale found in defendant’s pos session and the lack of use paraphernalia, and also failed to object to Ross’s testimony ab out the preservation of evidence for fingerprint and DNA testing. Thus, defendant’s claims rela ted to the admission of their testimony have not been preserved for appellate review. Howeve r, defense counsel did challenge Ross’s qualification as an expert in the sale, traffi cking, and distribution of heroin. Therefore, this claim has been pr eserved for appe llate review.

When an evidentiary issue has been preserved, this Court revie ws the trial court’s decision to admit evidence for an abuse of discretion, and revi ews de novo “preliminary questions of law, such as whether a rule of evidence precludes admissibility.” People v Chelmicki , 305 Mich App 58, 62; 850 NW2d 612 (2014). Further, a trial c ourt’s “ ‘determination regarding the qualification of an expert and t he admissibility of expert testimony is within the trial court’s discretion.’ ” People v Unger , 278 Mich App 210, 216; 749 NW2d 272 (2008), quoting People v Murray , 234 Mich App 46, 52; 593 NW2d 690 (1999). “An abuse of discretion occurs when the court chooses an outcom e that falls outside the range of reasonable and principled outcomes.” Unger , 278 Mich App at 217.

Unpreserved evidentiary claims are reviewed for plain error af fecting substantial rights. Chelmicki , 305 Mich App at 62. A plain error affects substantial rights when “the error affected the outcome of the lower court proceedings.” See People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). “Reversal is warranted only when the plain, f orfeited error resulted in the conviction of an actually innocent defendant or when an error s eriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independ ent of the defendant’s innocence.” Id . at 763-764 (quotation marks and citation omitted).

A. LAY OPINI ON TESTIMONY

Because Velaga was not qualified as an expert in the sale and distribution of narcotics, and Ross was not qualified as an expert in evidence processing, their testimony is governed by MRE 701. See People v Daniel , 207 Mich App 47, 57; 523 NW2d 830 (1994). MRE 701 provides:

If the witness is not testifying as an expert, the witness’ tes timony in the form of opinions or inferences is limited to those opinions or inferenc es which are (a) rationally based on the perception of the witness and (b) helpf ul to a clear understanding of the witness’ tes timony or the determination of a fact in issue.

Police officers may provide lay opinion testimony if such testi mony is not overly scientific or technical, and is based on personal knowledge. See People v Oliver , 170 Mich App 38, 50; 427 NW2d 898 (1988), mod 433 Mich 862 (1989).-6- The trial court properly admitted Velaga’s testimony under MRE 701, as it was based on his perceptions and personal knowledge, and was not overly scie ntific or technical. Before explaining what the scale found in defendant’s possession could be used for, and that he failed to find use paraphernalia in defendant’s possession, Velaga said t hat he studied items like the scale at the police academy, and that he received training and educat ion in items consistent with the use of narcotics. His testimony on these subjects was brief an d general, and was helpful to a clear understanding of the evidence found in defendant’s posses sion. MRE 701; Oliver , 170 Mich App at 50.

The trial court also did not err when it admitted Ross’s chall enged testimony regarding fingerprinting and DNA testing under MRE 701. Like Velaga’s st atements, Ross’s testimony was based on his own perceptions and opinions, and was not over ly scientific or technical. Ross’s testimony came in response to the prosecutor asking what would make him preserve evidence for fingerprint and DNA testing during his own investi gations, and whether he would feel the need to test for finge rprints or DNA when he found nar cotics on someone’s person. At the time of trial, Ross had worked for the Michigan State Polic e for almost 17 years, and spent three years running undercover narcotics operations. Further, the testimony was helpful to the jury’s understanding of why Velaga may have chosen not to prese rve the purple glove and plastic bag for fingerprint and DNA analysis. MRE 701; Oliver , 170 Mich App at 50.

Further, even if the trial court erred by admitting the challe nged testimony, the error did not affect the outcome of the proceedings. The prosecution pre sented significant additional evidence that defendant possessed the heroin with the intent to deliver. Velaga testified that he found the heroin in defendant’s pocket, and that defendant admi tted the scale found in the car was his. This evidence was supported by Ross’s expert testimon y, which, as discussed below, was properly admitted. Thus, no plain error occurred in the ad mission of the challenged lay opinion testimony. See Carines , 460 Mich at 763.

B. EXPERT TESTIMONY

The trial court did not abuse its discretion when it qualified Ross as an expert in the sale, trafficking, and distribution of heroin. Ross provided testimo ny similar (but more detailed and technical) to that prov ided by Velaga, but based on his expert qualifications and review of the police report, rather than pers onal experience. Ross opined th at the scale found in defendant’s possession and the lack of use paraphernalia indicated the inte nt to deliver, rather than use, the heroin.

MRE 702 governs the admissibility of expert testimony, and pro vides:

If the court determines that scie ntific, technical, or other sp ecialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, ex perience, training, or education may testify thereto inthe form of an opinion or othe rwise if (1) the testimony is based on sufficient facts or data, (2) the testimo ny is the product of reliable principles and methods, and (3) the witness has applie d the principles and methods reliably to the facts of the case.-7- The trial court must serve as a gatekeeper for expert testimony “under MRE 702 ‘to ensure that any expert testimony admitted at trial is reliable.’ ” People v Dobek , 274 Mich App 58, 94; 732 NW2d 546 (2007), quoting Gilbert v DaimlerChrysler Corp , 470 Mich 749, 780; 685 NW2d 391 (2004). “The critical inquiry . . . is whether such testimony will aid the factfinder in making the ultimate decision in the case.” People v Ray , 191 Mich App 706, 707; 479 NW2d 1 (1991), citing People v Smith , 425 Mich 98, 105; 387 NW2d 814 (1986). “[T[his Court has hel d that a prosecutor may use expert testimony from police officers to aid the jury in understanding evidence in controlled substance cases.” Murray , 234 Mich App at 53, citing Ray , 191 Mich App at 707.

The prosecution presented suffi cient evidence to support the t rial court’s determination that Sergeant Ross possessed the knowledge, skill, experience, training, or educ ation necessary to testify as an expert regardi ng the sale, trafficking, and di stribution of heroin. He testified that he had been employed by the Michigan State Police for almost 17 years, as a uniformed sergeant and a trooper with the city of Flint, and that he also spent th ree years as an undercover officer, attending basic and advanced n arcotics schools, and making unde rcover narcotics purchases. Further, he said that he had testified as an expert in the sale , trafficking, and distribution of narcotics in Genesee County 59 tim es in district court and thre e times in circuit court.

Additionally, Ross provided speci alized knowledge about the ev idence presented at trial, beyond Velaga’s general testimony r egarding the scale and the l ack of use paraphernalia found in defendant’s possession. He testi fied extensively that the amou nt of heroin defendant possessed (with a street value of approximately $1,500), in combination w ith the scale and the lack of use paraphernalia, informed his opinion that defendant possessed th e heroin for sale rather than for use. This was an issue to be decided by the jury. His testimo ny included information regarding the amount of heroin a typical user consumes and possesses at o ne time, as well as the number of single doses that could be creat ed from the amount of heroin de fendant possessed. Thus, the trial court did not abuse its discretion in qua lifying Sergeant Ross as an expert in, a nd allowing him to testify about, the sale, traffi cking, and distribution of heroi n. Unger , 278 Mich App at 217.

C. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant also argues that his defense counsel was ineffective for failing to object to the trial court’s admission of Velag a and Ross’s lay opinion testim ony. We disagree.

Claims of ineffective assistance of counsel are mixed question s of law and fact. People v Trakhtenberg , 493 Mich 38, 47; 826 NW2d 136 (2012). This Court reviews a t rial court’s findings of fact for clear error, and reviews questions of cons titutional law de novo. Generally, to preserve a claim of ineffective assistance of counsel, a def endant must file a motion for a new trial or Ginther 3 hearing in the trial court to establish evid ence supporting th e claim. People v Sabin ( On Second Remand ), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). Defendant di d not move for a new trial or a Ginther hearing in the trial court. Thus, our review is limited to mistakes apparent on the record. Id

. at 659.

3 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-8- To evaluate a claim of ineffective assistance of counsel, this Court uses the standard established in Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). See Hoag , 460 Mich at 5-6, citing People v Pickens , 446 Mich 298; 521 NW2d 797 (1994). For a successful claim o f ineffective assistance of co unsel, the defendant must show: “(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probabil ity that the outcome would have been different.” Trakhtenberg , 493 Mich at 51. The effective assistance of counsel is presu med, People v Roscoe , 303 Mich App 633, 644; 846 NW2d 402 (2014), and a defendant must overcome the presumption that defense counsel’s actions were so und trial strategy. Trakhtenberg , 493 Mich at 52. “[T]his Court will not second-guess counsel regarding matters of trial strategy, and even if defense counsel was ultimately mist aken, this Court will not assess counsel’s competence with the benefit of hindsight.” People v Rice ( On Remand ), 235 Mich App 429, 445; 597 NW2d 843 (1999).

Defense counsel’s failure to ob ject to Ross and Velaga’s lay t estimony did not amount to ineffective assistance of counsel. As discussed, no error occu rred when the court allowed Velaga’s testimony regarding the scale found in defendant’s pos session and the lack of use paraphernalia, or Ross’s testimony regarding the preservation o f evidence to test for fingerprints and DNA. The testimony was properly admitted under MRE 701. D efense counsel need not make fruitless or meritless objections. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010).

Further, even if defense counsel was ineffective for failing t o object to the challenged testimony, defendant has failed to demonstrate that but for cou nsel’s failure to object, there is a reasonable probability that the outcome of trial would have bee n different. Again, the prosecution presented significant additional evidence that defe ndant possessed the heroin with the intent to deliver. Velaga testified that he found the hero in in defendant’s pocket, and that defendant admitted the scale found in the car was his. Thus, t estimony about why the items seized during the search had not been tested for fingerprints o r DNA would not likely have affected the jury’s decision. In addition, Ross provided exper t testimony that the amount of heroin defendant had in his pocket, in combination with the sca le found in defendant’s possession and the lack of use paraphernalia, indicated that de fendant possessed the heroin for sale rather than for use. We c onclude that defendant has faile d to show that his trial counsel was ineffective.

IV. DUE DILIGENCE

Finally, defendant argues that the court abused its discretion by ruling that the prosecution exercised due dilig ence to locate Daniella Moore, t he passenger in the vehicle defendant was driving, to testi fy at trial. We disagree.

“We review a trial court’s determination of due diligence and the appropriateness of a ‘missing witness’ instruction for an abuse of discretion.” People v Eccles , 260 Mich App 379, 389; 677 NW2d 76 (2004), citing People v Bean , 457 Mich 677, 684; 580 NW2d 390 (1998).-9- “An abuse of discretion occurs w hen the trial court’s decision is outside the range of principled outcomes.” People v Duenaz , 306 Mich App 85, 90; 854 NW2d 531 (2014), citing People v Benton , 294 Mich App 191, 195; 817 NW2d 599 (2011). 4

Pursuant to MCL 767.40a(1), the prosecutor must provide a list of all known witnesses he or she may call at trial, and al l known res gestae witnesses. MCL 767.40a(1); Duenaz , 306 Mich App at 103. “Once a witness is endorsed under MCL 767.40a(3), 5 the prosecution must use due diligence to produce the witness.” Duenaz , 306 Mich App at 104 (foot note added), citing Eccles
, 260 Mich App at 388. “The test is one of reasonableness and de pends on the facts and circumstances of each case, i.e., whether diligent good-faith e fforts were made to procure the testimony, not whether more stringent efforts would have produc ed it.” Bean , 457 Mich at 684. If the trial court determines that the prosecutor failed to exe rcise due diligence to produce an endorsed witness, “the jury should be instructed that it may in fer that the missing witness’s testimony would have been unfavorable to the prosecution’s case .” Eccles , 260 Mich App at 388-389, citing CJI2d 5.12.

Although the trial court did not hold a separate due diligence hearing, the prosecution at trial listed the efforts made to locate Moore. The record supp orts the trial court’s finding that the efforts made were reasonable. According to the prosecutor, aft er she informed defense counsel that she no longer intended to call Moore to testify at trial, he said he may or may not want to call Moore himself, but had not yet decided. In response, she asked Velaga to assist in finding Moore. Velaga then went to Moore’s last known address twice. He spoke with Moore’s sister and mother, neither of whom could provide a good address or pho ne number for her. Another officer also went to the address, but failed to locate Moore. Additionally, Velaga unsuccessfully searched for Moore in the polic e internal database, and in the county jail.

Defendant compares the efforts made to locate Moore to those d etermined to be tardy and insufficient in Bean
, People v Dye , 431 Mich 58; 427 NW2d 501 (1988), and People v James ( After Remand ), 192 Mich App 568; 481 NW2d 715 (1992), but those cases are d istinguishable. In each, the prosecutor attempte d to introduce preliminary exam ination testimony of the missing witnesses at trial, to aid in their case in chief. Bean , 457 Mich at 680; Dye , 431 Mich at 61;

4 Defendant also argues that the c ourt violated his Confrontatio n Clause rights, but abandoned this claim by making no meaningful argument in support. “An ap pellant may not merely announce his position and leave it to this Court to discover an d rationalize the basis for his claims . . . .” People v Payne , 285 Mich App 181, 195; 774 NW2d 714 (2009) (quotation marks and citation omitted). Confrontation Clause claims are often m ade when the prosecution requests the admission of a witness’s preliminary examination t estimony, because that witness is missing at the time of trial. See Bean , 457 Mich at 680-682. Moore did not testify at the preliminary examination, and the prosecution did not seek the a dmission of any prior testimony or statements of Moore.

5 MCL 767.40a(3) provides: “ Not less than 30 days before the trial, the prosecuting attorne y shall send to the defendant or hi s or her attorney a list of th e witnesses the prosecuting attorney intends to produce at trial.”-10- James ( After Remand ), 192 Mich App at 571-573. Reviewing courts properly consider ed this fact as among the facts and circumstances of the case that info rmed the decisions in those cases. See Bean , 457 Mich at 684.

Here, the prosecution did not seek to introduce the prior test imony of Moore, and the prosecutor promptly notified defense counsel when she decided n ot to call Moore as a witness at trial. The prosecution is permitted to delete witnesses from t he list of witnesses it wishes to call at trial, upon the stipulation of the parties. MCL 767.40a(4). 6 Upon notification, defense counsel told the prosecution that he had not yet decided if he wanted to call Moore to testify on defendant’s behalf. The prosecution then began efforts to loca te Moore. Thus, in contrast to Dye
, James ( After Remand ), and Bean , the alleged tardiness of the prosecutor’s efforts cannot be considered unreasonable in this case, as they began immediately upon the prosecution’s being informed that the defense may wish to call Moore. Had the defe nse not intended to call Moore and agreed to her deletion from t he list of witnesses the prose cution intended to call at trial, there would have been no need to loca te her. Because the prosecution exercised due diligence in attempting to locate Moore, defe ndant was not en titled to a mis sing witness instruction.

Regardless, even if the prosecu tor failed to exercise due dili gence to locate Moore, defendant fails to establish that he suffered any prejudice as a result. In his brief, defendant makes the conclusory statement that had the court given the mis sing witness instruction, the outcome of trial would have been different, but in support of h is argument then cites to facts that having nothing to do with this case. 7 Again, “[a]n appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims . . . .” People v Payne , 285 Mich App 181, 195; 774 NW 2d 714 (2009) (quotation marks a nd citation omitted).

Affirmed.

/s/ Mark T. Boonstra /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly

6 It is not clear from the record whether defense counsel actual ly did stipulate to the removal of Moore from the list. Nonetheless, the prosecution acted in goo d faith by promptly notifying defense counsel of its desire t o remove her, which triggered th e request that she be located.

7 Defendant states, “Given the unc ertain evidence of regarding w hether the decedent was armed and began the shootout and the history of threatening and intim idating the defense in this matter, the jury may well have found a re asonable doubt had they inferr ed that the testimony of the missing witnesses would have been adverse to the prosecution’s theory.”