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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

December 4, 2014 

v No. 316985 

Oakland Circuit Court 

RONALD LEWIS KENNEDY, LC No. 2013-244509-FC 

 Defendant-Appellant. 

Before: RIORDAN, P.J., and SAAD and TALBOT, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury trial convictions of second-degree murder, MCL 

750.317, assault with intent to murder, MCL 750.83, and domestic violence, third offense, MCL 

750.81(4). Defendant stabbed his wife and fatally stabbed a male victim, Charles Shiffman. 

 Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 

concurrent prison sentences of 70 to 150 years for second-degree murder, 40 to 80 years for 

assault with intent to murder, and 3 to 15 years for the domestic violence conviction. We affirm. 

I. INEFFECTIVE ASSISTANCE OF COUNSEL 

A. STANDARD OF REVIEW 

 Defendant first contends that he was denied the effective assistance of counsel on several 

occasions. “In order to preserve the issue of effective assistance of counsel for appellate review, 

the defendant should make a motion in the trial court for a new trial or for an evidentiary 

hearing.” People v Sabin (On Second Remand), 242 Mich App 656, 658; 620 NW2d 19 (2000). 

Because defendant failed to do so, our review is limited to errors apparent on the record. People 

v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). 

B. ANALYSIS 

“Effective assistance of counsel is presumed, and the defendant bears a heavy burden to 

prove otherwise.” People v Mack, 265 Mich App 122, 129; 695 NW2d 342 (2005). To establish 

a claim for ineffective assistance of counsel, a defendant first must establish that “counsel’s 

representation fell below an objective standard of reasonableness.” People v Vaughn, 491 Mich 

642, 669; 821 NW2d 288 (2012) (quotation marks and citation omitted); see also Strickland v 
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Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Second, the defendant 

must show that trial counsel’s deficient performance prejudiced his defense, meaning “there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Vaughn, 491 Mich at 669 (quotation marks and citation omitted); 

see also Strickland, 466 US at 687. 

 Defendant argues that he was denied the effective assistance of counsel in the context of 

the admission of prior acts of domestic violence. The prosecution moved to admit evidence of 

defendant’s prior acts of domestic violence under MCL 768.27b. Defense counsel objected, 

arguing that the evidence was not relevant to second-degree murder, that defendant intended to 

plead to domestic violence, and that defense counsel intended to argue that defendant’s intent 

was less than intent to commit murder. 

The trial court found that the domestic violence evidence was relevant and not unfairly 

prejudicial to the assault with intent to murder charge (against defendant’s wife). However, the 

trial court agreed that the evidence had no apparent relevance to the second-degree murder 

charge (against the male victim), and it posed a risk of unfair prejudice and confusion. However, 

the court found that a limiting instruction would suffice to alleviate any prejudice. The trial 

court thereafter gave a limiting instruction, informing the jury that it could consider the prior 

domestic violence evidence only in context of the assault with intent to murder charge, not 

second-degree murder. 

Defense counsel’s performance did not fall below an objective standard of 

reasonableness. Vaughn, 491 Mich at 669. Defense counsel challenged the prosecution’s 

actions, specifically arguing that the disputed evidence should be excluded. While defense 

counsel did not succeed in his objections, that is not the test for ineffective assistance of counsel. 

People v Williams, 240 Mich App 316, 332; 614 NW2d 647 (2000) (“[t]he fact that the strategy 

chosen by defense counsel did not work does not constitute ineffective assistance of counsel.”). 

Furthermore, the trial court agreed that the evidence was not relevant to the seconddegree murder charge and was prejudicial. The trial court selected the remedy it deemed 

appropriate, namely, a limiting instruction. Defendant has not identified any further action his 

trial counsel could have taken to alter the trial court’s ruling. People v Thomas, 260 Mich App 

450, 457; 678 NW2d 631 (2004) (counsel is not ineffective for failing to follow a futile course of 

action). Because defense counsel challenged the disputed evidence, there is no basis to conclude 

that he abdicated his role in providing effective assistance of counsel.1

 In his Standard 4 brief, defendant also contends that defense counsel provided ineffective 

assistance of counsel when informing him that he faced a prison sentence of 30 years if 

convicted of second-degree murder. According to defendant, this advice caused him to reject the 

prosecutor’s plea offer of 25 years. In actuality, however, the trial court eventually sentenced 

defendant to a term of 70 to 150 years on the second-degree murder conviction. However, there 

is no evidence on the record that defense counsel faltered in this regard. 

 

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 We also note that defendant only raises this issue in context of ineffective assistance of counsel. 
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 “In the context of pleas a defendant must show the outcome of the plea process would 

have been different with competent advice.” Lafler v Cooper, __ US __; 132 S Ct 1376, 1384; 

182 L Ed 2d 398 (2012). A defendant has the burden of establishing the factual predicate for his 

claim of ineffective assistance of counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). 

In the instant case, there is no record evidence to support defendant’s claim. In fact, in a 

recorded jailhouse conversation, defendant referenced that he may be facing life imprisonment if 

convicted. Thus, the only record evidence indicates that defendant was aware of the 

consequences of a conviction. Accordingly, defendant has failed to establish the factual 

predicate for his claim. 

 Defendant also argues, in his Standard 4 brief, that defense counsel provided ineffective 

assistance for failing to acquire an evaluation of defendant’s mental stability, presumably to 

present some type of mental illness defense. The decision to pursue a particular defense is a 

matter of trial strategy, and defense counsel is not required to concoct a defense when none 

exists. People v Buie, 298 Mich App 50, 66; 825 NW2d 361 (2012). “The role of defense 

counsel is to choose the best defense for the defendant under the circumstances.” People v 

Pickens, 446 Mich 298, 325; 521 NW2d 797 (1994). In this case, defendant told the police that 

he stabbed the male victim in a manner consistent with self-defense. Accordingly, defense 

counsel’s self-defense strategy was reasonable in light of the evidence. Nor does defendant 

highlight any evidence demonstrating that defense counsel should have pursued some type of 

mental illness defense. In strategically choosing to pursue a self-defense theory, defense counsel 

was not ineffective. Pickens, 446 Mich at 325. 

II. PROSECUTORIAL MISCONDUCT 

A. STANDARD OF REVIEW 

 Next, defendant contends that the prosecutor committed misconduct during rebuttal 

argument. Because defendant did not object to the alleged improper statement, our review is 

limited to plain error affecting substantial rights. People v Watson, 245 Mich App 572, 586; 629 

NW2d 411 (2001). 

B. ANALYSIS 

 During rebuttal argument, the prosecution stated that because the bloodstains found in the 

home were transfers, DNA evidence would not answer the question of where the male victim 

was stabbed. At trial, evidence was adduced that the bloodstains in the house were transfer 

stains from defendant when he returned to the house after he stabbed the victim outside, and that 

the bloodstains were not sent for DNA testing. Thus, the prosecution’s statements during 

rebuttal argument merely highlighted this evidence, explaining why the lack of DNA evidence 

was immaterial. A prosecutor “is free to argue the evidence and all reasonable inferences arising 

from it as they relate to his or her theory of the case[.]” People v Dobek, 274 Mich App 58, 66; 

732 NW2d 546 (2007). Although defendant characterizes the prosecution’s statements as 

testimony, the prosecution merely advanced its theory of the evidence. Id. 

 Nor is there any merit to defendant’s argument that the prosecution violated his right of 

confrontation, US Const, Am VI, XIV. Contrary to defendant’s argument, the prosecution did 
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not introduce any new evidence in its closing argument. Rather, the prosecution merely argued 

that based on the evidence at trial, the lack of DNA evidence was irrelevant in deciding 

defendant’s guilt. As we have recognized, “[t]he prosecution has wide latitude in arguing the 

facts and reasonable inferences, and need not confine argument to the blandest possible terms.” 

Dobek, 274 Mich App at 66. The prosecution did not indicate that it had some type of special 

knowledge. People v Meissner, 294 Mich App 438, 456; 812 NW2d 37 (2011). Accordingly, 

there was no plain error. Watson, 245 Mich App at 586. 

III. EVIDENTIARY ISSUES 

A. STANDARD OF REVIEW 

 Also in his Standard 4 brief, defendant contends that the trial court erred when it 

excluded evidence of the male victim’s convictions. We review a trial court’s evidentiary 

decisions for an abuse of discretion. People v Unger, 278 Mich App 210, 216; 749 NW2d 272 

(2008). “An abuse of discretion occurs when the court chooses an outcome that falls outside the 

range of reasonable and principled outcomes.” Id. at 217. 

B. ANALYSIS 

 Defendant argues that the victim’s convictions were admissible because they tended to 

show his violent character. However, the relevant rule is the following: 

 Evidence concerning the aggressive character of a homicide victim, even 

if the defendant was unaware of it at the time, is admissible in furtherance of a 

self-defense claim to prove that the victim was the probable aggressor. However, 

this type of character evidence may only be admitted in the form of reputation 

testimony, not by testimony regarding specific instances of conduct unless the 

testimony regarding those instances is independently admissible for some other 

reason or where character is an essential element of a claim or defense. The 

victim’s character is not an essential element of defendant’s self-defense claim. 

[People v Orlewicz, 293 Mich App 96, 104; 809 NW2d 194 (2011), remanded on 

different grounds 493 Mich 916 (2012).] 

 The victim’s convictions for domestic violence and resisting or obstructing a police 

officer were specific instances of conduct. As such, they were not admissible to prove the 

victim’s character, which is not an essential element of self-defense. Orlewicz, 293 Mich App at 

104. Nor does defendant assert that this evidence was admissible for an alternate reason, or that 

defendant was aware of the victim’s convictions. Id. The trial court did not abuse its discretion 

in excluding this evidence. 

IV. MOTION FOR MISTRIAL 

A. STANDARD OF REVIEW 

 Lastly, defendant contends in his Standard 4 brief that the trial court erred in denying his 

motion for a mistrial after the female victim, defendant’s wife, spoke with two people in the 
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courtroom. “We review for an abuse of discretion a trial court’s decision regarding a motion for 

a mistrial.” People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010). 

B. ANALYSIS 

 “The purposes of sequestering a witness are to prevent him from coloring his testimony 

to conform with the testimony of another.” People v Meconi, 277 Mich App 651, 654; 746 

NW2d 881 (2008) (quotation marks and citation omitted). In the context of a motion for 

mistrial, “[a] trial court should grant a mistrial only for an irregularity that is prejudicial to the 

rights of the defendant and impairs his ability to get a fair trial.” Schaw, 288 Mich App at 236 

(quotation marks and citation omitted). A mistrial is appropriate only when the prejudicial effect 

of an error can be removed in no other manner. People v Horn, 279 Mich App 31, 36; 755 

NW2d 212 (2008). 

Of initial significance is that defendant’s wife did not violate the sequestration order, as it 

did not prohibit her from speaking with other individuals present in the courtroom. Moreover, 

even if the sequestration order was violated, defendant has failed to establish prejudice. 

Defendant’s wife gleaned no information that would color her testimony. From speaking with 

the individuals in the courtroom, she merely learned that a witness testified and his 911 phone 

call was played. She learned nothing of the substance of the testimony. Further, while she 

learned that opening statements were made and that defense counsel portrayed her as a liar, she 

explained that she already knew that was his intention, as was consistent with the preliminary 

examination. 

Moreover, other remedies less drastic than a mistrial were available, such as crossexamination. Meconi, 277 Mich App at 654. We find no abuse of discretion in the trial court’s 

denial of a mistrial.2

 

V. CONCLUSION

 There were no instances of ineffective assistance of counsel, prosecutorial misconduct, 

evidentiary error, or procedural irregularities that warrant a remand or reversal. We have 

reviewed all remaining claims and find them to be without merit. We affirm. 

/s/ Michael J. Riordan 

/s/ Henry William Saad 

/s/ Michael J. Talbot 

 

2

 While the prosecution argues that as a victim, defendant’s wife had a constitutional right to be 

present in court, we decline to address this issue as we agree that a mistrial was not warranted.