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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

April 16, 2015 

v No. 319388 

Macomb Circuit Court 

ROD PATROS ROMAYA, LC No. 2012-004019-FC 

 Defendant-Appellant. 

Before: HOEKSTRA, P.J., and MARKEY and DONOFRIO, JJ. 

PER CURIAM. 

 A jury convicted defendant of two counts of first-degree criminal sexual conduct (CSC), 

MCL 750.520b, and three counts of second-degree CSC, MCL 750.520c. The trial court 

sentenced defendant as an habitual offender, second offense, MCL 769.10, to concurrent prison 

terms of 262 to 444 months’ imprisonment for each first-degree CSC conviction, and 120 to 270 

months’ imprisonment for each second-degree CSC conviction. Defendant appeals as of right. 

For the reasons explained in this opinion, we affirm. 

 Defendant was convicted of sexually abusing his biological daughter, MR. In January 

2009, when MR was 10 years old, defendant moved her to the United States from Iraq, where 

she had been living with her mother. MR had met defendant before, but had never lived with 

him before coming to the United States. MR testified that after she moved in with defendant, he 

touched her breasts underneath her clothes on several occasions. Defendant’s behavior 

eventually escalated to forcing MR to touch his penis and put his penis in her mouth. On one of 

those occasions, MR used her T-shirt to clean herself after defendant ejaculated on her, and she 

saved the shirt in a plastic bag. That shirt was turned over to the police. Forensic testing 

revealed the presence of seminal fluid on MR’s shirt, and the pattern of the stain was consistent 

with a wiping motion. The defense stipulated that defendant’s DNA was on the shirt. Defendant 

left the country after Child Protective Services (CPS) began an investigation, and he was 

apprehended several months later in Sweden. The defense theory at trial was that defendant did 

not do anything inappropriate, and that the prosecution witnesses were not credible. 

I. SELF-REPRESENTATION AT TRIAL 

 Defendant first argues that the trial court violated his right to self-representation by 

concluding that defendant could not represent himself at trial. Because the record discloses that 
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defendant never requested that he be allowed to represent himself, and instead continuously 

expressed a desire for representation by counsel, we find no merit to this argument. 

 The Sixth Amendment of the United States Constitution explicitly guarantees a defendant 

in a criminal case the right to the assistance of counsel and implicitly guarantees the right of selfrepresentation. Faretta v California, 422 US 806, 818-832; 95 S Ct 2525; 45 L Ed 2d 562 

(1975). “[A] defendant has a constitutional entitlement to represent himself or to be represented 

by counsel—but not both.” People v Dennany, 445 Mich 412, 442; 519 NW2d 128 (1994). 

Upon a defendant’s initial request to proceed pro se, a court must determine that 

(1) the defendant’s request is unequivocal, (2) the defendant is asserting his right 

knowingly, intelligently, and voluntarily . . . and (3) the defendant’s selfrepresentation will not disrupt, unduly inconvenience, and burden the court and 

the administration of the court’s business. [People v Russell, 471 Mich 182, 190; 

684 NW2d 745 (2004).] 

The trial court must also satisfy MCR 6.005(D), which involves advising a defendant of the 

charges, possible sentences, and risks of self-representation and offering a defendant the 

opportunity to consult with an attorney. Russell, 471 Mich at 190. 

 The initial inquiry, however, is whether a defendant unequivocally requested selfrepresentation. See People v Williams, 470 Mich 634, 641; 683 NW2d 597 (2004). The purpose 

of the unequivocal requirement is to “abort frivolous appeals by defendants who wish to upset 

adverse verdicts after trials at which they had been represented by counsel.” People v Anderson, 

398 Mich 361, 367; 247 NW2d 857 (1976). Courts indulge every reasonable presumption 

against the waiver of the right to counsel, and for this reason any ambiguity in a defendant’s 

request should be resolved in favor of representation. Russell, 471 Mich at 193. A request to 

proceed in propria persona with standby counsel may be considered an unequivocal request for 

self-representation, People v Hicks, 259 Mich App 518, 531; 675 NW2d 599 (2003); but, 

requests for substitute counsel or expressions of mere dissatisfaction with counsel do not 

constitute unequivocal requests for self-representation. See, e.g., United States v Martin, 25 F3d 

293, 296 (CA 6 1994); People v Payne, 27 Mich App 133, 135-136; 183 NW2d 371 (1970). 

 In this case, the record discloses that defendant did not unequivocally express a desire to 

waive his right to counsel and to represent himself. He instead sought an adjournment to hire 

new counsel. Specifically, on the day trial was scheduled to begin, defendant appeared in court 

with his second court-appointed attorney, complained that there had been a breakdown in the 

attorney-client relationship, and requested an adjournment to hire a new attorney. The trial court 

agreed to release defendant’s attorney and adjourn trial, but cautioned defendant that if he did not 

retain an attorney by the next scheduled trial date, trial would not be adjourned and he would 

have to represent himself. Defendant promised that he would “hire a lawyer, hundred percent.” 

Despite defendant’s assurance, the trial court attempted to follow the procedural requirements in 

Anderson and MCR 6.005(D). The trial court began by informing defendant of the charges and 

possible penalties, at which point defendant repeatedly interrupted to proclaim his innocence. 

At that point, without completing a full colloquy under Anderson and MCR 6.005(D), the trial 

court concluded that defendant “could not represent himself, he just couldn’t.” Defendant did 
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not disagree, and continued to express that he wanted an attorney to represent him. At no time 

did defendant make a request, let alone an unequivocal request, to represent himself.1

 

 From the record, it is clear that the option of defendant representing himself was raised 

by the trial court, not defendant, as an alternative method of avoiding another adjournment if 

defendant failed to hire an attorney. Acceding to defendant’s expressed desire for a new 

attorney, the trial court arranged for the appointment of a third attorney, in case defendant did not 

hire an attorney, and scheduled a new trial date that allowed sufficient time for the new attorney, 

whether retained or appointed, to prepare for trial. Defendant proceeded with his third courtappointed attorney at all subsequent hearings, trial, and sentencing. Because defendant never 

made an unequivocal request that he be allowed to represent himself, the trial court was not 

required to conduct a full colloquy under Anderson and MCR 6.005(D), and there is no merit to 

defendant’s argument that his right of self-representation was violated. 

II. APPOINTMENT OF NEW COUNSEL 

 Defendant argues that the trial court abused its discretion by denying his request for new 

counsel made on the first day of trial. In particular, defendant contends that the trial court failed 

to conduct an adequate inquiry into the breakdown in the attorney-client relationship and denied 

defendant a fair trial by failing to appoint substitute counsel. 

 “A trial court’s decision regarding substitution of counsel will not be disturbed absent an 

abuse of discretion.” People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). “A trial 

court abuses its discretion when its decision falls ‘outside the range of principled outcomes.’ ” 

People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010) (citation omitted). As this Court 

explained in Traylor, 245 Mich App at 462: 

An indigent defendant is guaranteed the right to counsel; however, he is not 

entitled to have the attorney of his choice appointed simply by requesting that the 

 

1

 Defendant suggests on appeal that, although he did not make a specific request to represent 

himself on the first day of trial, he did make such a request at a preliminary examination. 

Reviewing the preliminary examination transcript, we conclude that defendant also failed to 

make an unequivocal request to represent himself at that time. At the preliminary examination, 

defendant’s attorney stated that defendant “has a right to represent himself, if he wants to 

represent himself . . . .” Based on this passing remark by defendant’s attorney, the district court 

briefly considered whether defendant could represent himself and concluded that, “if” there was 

a motion for defendant to represent himself, it was denied because defendant’s remarks were not 

always lucid and he did not have a sufficient grasp of the legalities involved. However, while 

defendant’s attorney and the district court discussed the possibility of self-representation, 

defendant never made such a request on the record. Defendant requested dismissal of his 

attorney, but he also asserted that “I need attorney, attorney defending me, listening to me what 

I’m saying to him . . . .” Fairly read, defendant may have been unhappy with his counsel at the 

time of the preliminary examination, and he may have requested new counsel, but he did not 

make an unequivocal request to represent himself. 
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attorney originally appointed be replaced. Appointment of a substitute counsel is 

warranted only upon a showing of good cause and where substitution will not 

unreasonably disrupt the judicial process. Good cause exists where a legitimate 

difference of opinion develops between a defendant and his appointed counsel 

with regard to a fundamental trial tactic. [Citation omitted.]

A defendant’s general unhappiness with counsel’s representation or a mere allegation that a 

defendant lacks confidence in his or her attorney, unsupported by a substantial reason, does not 

constitute good cause for the substitution of counsel. People v Strickland, 293 Mich App 393, 

398; 810 NW2d 660 (2011). The circumstances that would justify good cause depend on the 

facts of each case. People v Buie, 298 Mich App 50, 67; 825 NW2d 361 (2012). “When a 

defendant asserts that the defendant’s assigned attorney is not adequate or diligent, or is 

disinterested, the trial court should hear the defendant’s claim and, if there is a factual dispute, 

take testimony and state its findings and conclusion on the record.” Strickland, 293 Mich App at 

397 (citation omitted). 

 In this case, initially, we reject defendant’s claim that the trial court did not adequately 

inquire into the breakdown in the attorney-client relationship. The trial court gave defendant an 

opportunity to place his complaints about counsel’s alleged inadequacies on the record, and 

allowed defense counsel to respond. The trial court also invited defendant to submit in writing 

any further grievances against defense counsel. In short, the trial court gave defendant ample 

opportunity to voice his claims and the trial court was clearly aware of defendant’s complaints 

regarding appointed counsel. 

 Further, defendant’s complaints did not establish good cause for the appointment of new 

counsel. Defendant stated that he was dissatisfied with defense counsel’s preparedness because 

counsel did not subpoena defense witnesses that he recommended, and they had little 

communication before trial. However, the record does not disclose, nor did defense counsel ever 

indicate, that he was unprepared or needed more time. To the contrary, counsel appeared to be 

fully aware of the facts of the case, which were not overly complex, and counsel advised the 

court that he was ready to proceed. Even if defense counsel did not communicate with defendant 

as much as defendant would have preferred, defendant admitted that defense counsel visited him 

in jail on two occasions. Defense counsel claimed that he visited defendant “several times at the 

jail,” and defendant acknowledged communicating with counsel by virtue of his ongoing 

complaint that defense counsel was not following his instructions. Nothing in counsel’s 

performance suggests that he was “inadequate, lacking in diligence, or disinterested” in 

defendant’s case, and thus, counsel’s alleged failures did not establish good cause for 

substitution of counsel. See Buie, 298 Mich App at 68. 

 Defendant also expressed his dissatisfaction that defense counsel did not contact and 

subpoena the witnesses he recommended. Both of defendant’s first two appointed attorneys 

made efforts to contact defendant’s witnesses. After appointing defense counsel as defendant’s 

third attorney, the trial court granted counsel’s request for an investigator “to help locate” 

“several” potential defense witnesses. On the first day of trial, counsel advised the court that he 

had worked with the investigator and that “his efforts did not lead []to any witnesses that . . . 

might be produced[.]” Defendant admitted that defense counsel advised him that his witnesses 

were “no good.” Defense counsel also explained that he had “an active trial strategy,” that 
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defendant sought the presentation of evidence that was “not supportable,” and that “some of” 

defendant’s proposed “attacks against the complainant are just not admissible.” Counsel was not 

required to “advocate a meritless position.” People v Snider, 239 Mich App 393, 425; 608 

NW2d 502 (2000). Moreover, counsel’s decisions about defense strategy, including what 

evidence and witnesses to present, are matters of trial strategy, People v Rockey, 237 Mich App 

74, 76; 601 NW2d 887 (1999), and disagreements regarding matters of trial strategy or 

professional judgment do not warrant appointment of substitute counsel, Traylor, 245 Mich App 

at 463. 

 Furthermore, defendant waited until the day of trial to request new counsel. The jury and 

witnesses were present, and the prosecutor and defense counsel were ready to proceed. 

Defendant had previously requested new counsel on the prior trial date, and the court granted an 

adjournment. A substitution of counsel on the adjourned trial date, when both the prosecutor and 

defense counsel were ready to proceed, would have unreasonably delayed the judicial process. 

Cf. Strickland, 293 Mich App at 399. Consequently, the trial court did not abuse its discretion 

by denying defendant’s request for a new attorney. 

III. EVIDENCE OF FLIGHT 

 Next, defendant argues on appeal that evidence relating to his flight from the country 

following the initiation of an investigation by CPS should not have been admitted at trial. 

Specifically, defendant maintains that, because he left the country before being charged with a 

crime, there is no indication that he fled to avoid criminal prosecution. According to defendant, 

the evidence of flight was therefore irrelevant and substantially more prejudicial than probative. 

 Because defendant did not object to the challenged flight evidence, this claim is not 

preserved. Accordingly, our review is limited to plain error affecting substantial rights. People v 

Benton, 294 Mich App 191, 202; 817 NW2d 599 (2011). 

 “It is well established in Michigan law that evidence of flight is admissible.” People v 

Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995). The term “flight” has been applied to 

such actions as fleeing the scene of the crime, leaving the jurisdiction, resisting arrest, attempting 

to escape custody, and running from the police. Id. “Such evidence is probative because it may 

indicate consciousness of guilt, although evidence of flight by itself is insufficient to sustain a 

conviction.” Id. For evidence of flight to be admissible, the prosecutor is not required to prove 

that a defendant fled because he or she was “ ‘motivated’ by fear of apprehension.” People v 

Smelley, 485 Mich 1023; 776 NW2d 310 (2010). “As bearing upon the motive of the accused in 

fleeing, it is competent for the prosecution to show that the defendant has knowledge of facts 

from which it might readily be inferred that an investigation would be made and evidence 

discovered tending to establish the defendant's guilt.” 29 Am. Jur. 2d Evidence § 543. Further, 

“the fact that the defendant has not been taken into custody or formally arrested before a hasty 

departure, affects the weight and not the admissibility of the evidence.” 29 Am. Jur. 2d Evidence 

§ 543. See also People v Compeau, 244 Mich App 595, 598; 625 NW2d 120 (2001). “[I]t is 

always for the jury to determine whether evidence of flight occurred under such circumstances as 

to indicate guilt.” People v Unger, 278 Mich App 210, 226; 749 NW2d 272 (2008). 
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 In this case, there was evidence that defendant left the country shortly after seeing a letter 

affixed to his front door advising him that CPS would like to speak with him about “some 

allegations.” The friend whom defendant contacted to transport him to Canada was not 

expecting defendant’s call. Defendant contacted the same friend at a later time, asking the friend 

to have defendant’s two brothers “sell all of his belongings in the apartment” and “send him the 

money because he doesn’t have any money.” Defendant’s family members did not know that 

defendant was leaving the country, did not know his whereabouts, and had no way of contacting 

him. Several months after leaving, defendant was apprehended in Sweden. Contrary to what 

defendant now argues, his actions of abruptly leaving the jurisdiction and hiding in a foreign 

country after learning of a possible CPS investigation supported an inference that he was 

attempting to avoid detection by leaving the country, and thus his actions constituted evidence of 

“flight” which was admissible to support an inference of guilt. See Unger, 278 Mich App at 226. 

 Furthermore, we are not persuaded that the evidence of flight should have been excluded 

because it was unduly prejudicial. Under MRE 403, relevant evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair prejudice. People v 

Cameron, 291 Mich App 599, 610; 806 NW2d 371 (2011). MRE 403 is not intended to exclude 

“damaging” evidence, because any relevant evidence will be damaging to some extent; rather, 

MRE 403 is only intended to prohibit evidence which is unfairly prejudicial. People v Mills, 450 

Mich 61, 75; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995). Under the balancing test of 

MRE 403, this Court must first decide if the evidence was unfairly prejudicial, and then “ ‘weigh 

the probativeness or relevance of the evidence’ against the unfair prejudice” to determine 

whether any prejudicial effect substantially outweighed the probative value of the evidence. 

Cameron, 291 Mich App 611 (citation omitted). Unfair prejudice exists where there is “a danger 

that marginally probative evidence will be given undue or pre-emptive weight by the jury” or “it 

would be inequitable to allow the proponent of the evidence to use it.” Mills, 450 Mich at 75-76. 

Unfair prejudice “refers to the tendency of the proposed evidence to adversely affect the 

objecting party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g., 

the jury’s bias, sympathy, anger, or shock.” Cameron, 291 Mich App at 611 (citation omitted). 

 We are not persuaded that the flight evidence in this case was unfairly prejudicial. 

Certainly this evidence was damaging to defendant’s position, but we see no indication that the 

jury was incapable of rationally weighing the flight evidence or that this evidence injected 

extraneous considerations into the lawsuit. Moreover, in its final instructions, the trial court gave 

a cautionary instruction on the use of flight evidence that limited the potential for any prejudice, 

and juries are presumed to follow their instructions. See People v Breidenbach, 489 Mich 1, 13; 

798 NW2d 738 (2011). Accordingly, there was no error in admitting the challenged evidence as 

evidence of flight.2

 

 

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 Because the evidence was properly admitted, any objection by defense counsel to the 

presentation of this evidence would have been futile. Consequently, insofar as defendant asserts 

on appeal that counsel provided ineffective assistance by failing to object to the flight evidence, 

his argument is without merit because counsel cannot be considered ineffective for failing to 

raise a futile objection or advocate a meritless position. Snider, 239 Mich App at 425. 
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IV. ALLEYNE V UNITED STATES

 Defendant next argues that judicial fact-finding by the trial court when scoring the 

sentencing guidelines variables entitles him to resentencing under Alleyne v United States, 570 

US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013). In Alleyne, the United States Supreme Court 

held that, pursuant to a defendant’s Sixth Amendment right to an impartial jury, facts that 

increase a mandatory minimum sentence must “be submitted to a jury and found beyond a 

reasonable doubt.” Id. at 2163. As defendant acknowledges, in People v Herron, 303 Mich App 

392, 405; 845 NW2d 533 (2013), appeal held in abeyance ___ Mich ___; 846 NW2d 924 (2014), 

this Court determined that, notwithstanding Alleyne, judicial fact-finding incident to the scoring 

of the Michigan sentencing guidelines does not violate the Sixth Amendment. Because we are 

required to follow Herron, see MCR 7.215(J)(1), we reject this claim of error. 

V. DEFENDANT’S STANDARD 4 BRIEF 

 Defendant raises additional issues in a pro se supplemental brief filed pursuant to 

Supreme Court Administrative Order No. 2004-6, Standard 4. Having reviewed each of these 

arguments, we disagree with defendant’s additional claims. 

A. SHACKLING 

 Defendant argues that the trial court deprived him of a fair trial by forcing him to wear 

leg irons throughout the trial, without providing any justification for the restraint. Defendant 

never raised this issue in the trial court, leaving the issue unpreserved. Accordingly, our review 

is limited to plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 

763-764; 597 NW2d 130 (1999). 

 A defendant has a due process right to be free of shackles or handcuffs during trial. 

People v Dixon, 217 Mich App 400, 404; 552 NW2d 663 (1996). However, this right is not 

absolute; a trial court may order a defendant to be restrained if the court finds that restraint is 

necessary to prevent escape, to prevent injury to persons in the courtroom, or to maintain an 

orderly trial. People v Dunn, 446 Mich 409, 425; 521 NW2d 255 (1994). If a defendant is 

improperly restrained, he or she will nonetheless not be entitled to relief on appeal unless there is 

some showing that the defendant was prejudiced by the shackles. People v Horn, 279 Mich App 

31, 36; 755 NW2d 212 (2008). “[A] defendant is not prejudiced if the jury was unable to see the 

shackles on the defendant.” Id. 

 In this case, the record lacks any evidence that defendant’s legs were actually shackled 

or, if they were, that the shackling was visible to jurors.3

 Thus, there is no basis for finding plain 

 

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 Although defendant has filed an affidavit with this Court averring that he was shackled during 

trial, that the “chain rattled whenever [he] moved,” and that “everyone in the jury pool was able 

to see that [he] was wearing leg irons[,]” this affidavit is not evidence. Further, while defendant 

provided his affidavit in conjunction with a motion to remand, his motion focused on claims of 

ineffective assistance, and he did not seek remand to develop a factual record regarding the 
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error (i.e., an error that is “clear” or “obvious”). See Carines, 460 Mich at 763. As a 

comparison, in People v Solomon (Amended Opinion), 220 Mich App 527, 532; 560 NW2d 651 

(1996), this Court rejected a similar claim where “the record lacks any discussion concerning the 

basis for defendant’s being shackled, there is no indication that the defense objected to the 

shackling or called upon the trial court to unshackle defendant, and there was no showing of 

actual prejudice.” Because the record in this case similarly fails to support defendant’s claim and 

there has been no showing of prejudice, we reject this claim of error. 

B. INEFFECTIVE ASSISTANCE OF COUNSEL 

 On appeal, defendant raises several claims of ineffective assistance of counsel.4

 Because 

defendant failed to raise his ineffective assistance of counsel claims in the trial court in 

connection with a motion for a new trial or a request for an evidentiary hearing, our review of 

this issue is limited to mistakes apparent from the record. People v Sabin (On Second Remand), 

242 Mich App 656, 658-659; 620 NW2d 19 (2000). To establish ineffective assistance of 

counsel, defendant first must show that counsel’s performance was below an objective standard 

of reasonableness. People v Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011). Second, 

defendant must show that but for counsel’s deficient performance, it is reasonably probable that 

the result of the proceeding would have been different. Id. Defendant bears the burden of 

establishing the factual predicate of his ineffective assistance claim. People v Hoag, 460 Mich 1, 

6; 594 NW2d 57 (1999). Effective assistance of counsel is presumed and defendant bears a 

heavy burden of proving otherwise. Rockey, 237 Mich App at 76. 

1. DEFENDANT’S RIGHT TO TESTIFY AT TRIAL 

 Defendant first argues that defense counsel prevented him from exercising his 

constitutional right to testify on his own behalf. Defendant alleges that defense counsel 

interfered with defendant’s right to testify at trial by agreeing to investigate the case, locate 

witnesses, and prepare a defense only if defendant agreed not to testify. 

 Contrary to these assertions, the record does not support defendant’s argument that 

defense counsel deprived him of his right to testify at trial. A criminal defendant has a 

fundamental constitutional right to testify at trial. US Const, Am XIV; Const 1963, art 1, §§ 17, 

shackling issue. In any event, a panel of this Court denied his motion to remand, and that 

decision has now become the law of the case. See People v White, 307 Mich App 425, __; __ 

NW2d __ (2014), slip op at 2. In short, there is no record evidence supporting defendant’s 

assertion that he was restrained and that, if he was restrained, the shackles were visible to the 

jury. 

4

 To the extent defendant now reiterates his request for a remand to establish an evidentiary 

record relating to his ineffective assistance of counsel claims, his request for a remand was 

previously denied by a panel of this Court, and that decision now constitutes the law of the case. 

See White, slip op at 2. In any event, having reviewed the record in the case and defendant’s 

proffered affidavit, defendant’s ineffective assistance claims are without merit and we see no 

need for the development of a further evidentiary record. 
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20. The decision to testify or not to testify is a strategic one “best left to an accused and his 

counsel.” People v Martin, 150 Mich App 630, 640; 389 NW2d 713 (1986). “Although counsel 

must advise a defendant of this right, the ultimate decision whether to testify at trial remains with 

the defendant.” People v Bonilla–Machado, 489 Mich 412, 419; 803 NW2d 217 (2011). “If the 

accused expresses a wish to testify at trial, the trial court must grant the request, even over 

counsel’s objections.” People v Simmons, 140 Mich App 681, 685; 364 NW2d 783 (1985). “[I]f 

defendant . . . decides not to testify or acquiesces in his attorney’s decision that he not testify, the 

right will be deemed waived.” Id. (citation and quotations omitted). 

 There is no basis in the record for concluding that defense counsel deprived defendant of 

his constitutional right to testify. The record indicates that after the prosecution rested, the trial 

court advised defendant of his right to testify or not testify, and informed him that the decision 

whether to testify was defendant’s “and [his] alone.” Defendant stated that he understood that 

the decision was his, and indicated that he had discussed the matter with defense counsel. 

Defense counsel stated on the record that he had advised defendant not to testify, and asked 

defendant if he agreed. Defendant then stated, “You told me that but I’d like to testify because I 

want to tell everybody how she’s lying. That’s all.” When defense counsel requested an 

opportunity to further discuss the matter with defendant, the trial court allowed defendant’s 

nephew to accompany them into a private room and then, at defendant’s request for “time to 

think about it,” gave defendant “overnight to discuss this with [his] attorney, [his] family 

member and anybody else [he] wish[ed].” The following day, the trial court again advised 

defendant of his right to testify or not to testify, and again explained that the decision was his and 

his alone. Defense counsel stated on the record that he and defendant had discussed whether 

defendant was going to testify, and that defendant agreed that he was not going to testify. 

Defendant confirmed that it was his decision to not testify. Defendant did not claim that he was 

ignorant of his right to testify, or that defense counsel had coerced him into not testifying. 

 The record reflects that defendant was properly advised that it was solely his decision 

whether to testify, that he was given ample opportunity to contemplate his decision and discuss it 

with anyone he wished, and that he personally and voluntarily elected not to testify as a matter of 

trial strategy. Thus, the record does not support defendant’s claim that he was prohibited from 

testifying, and defendant has not overcome the strong presumption of sound strategy regarding 

any advice counsel may have offered him in respect to his decision to testify. See Rockey, 237 

Mich App at 76. 

2. FAILURE TO ADEQUATELY COMMUNICATE A PLEA OFFER 

 The record also fails to support defendant’s claim that he was denied the effective 

assistance of counsel because a plea offer was not adequately communicated to him. At a 

pretrial hearing on February 5, 2013, the prosecutor placed the first plea offer on the record, 

which involved defendant pleading guilty to three counts of second-degree CSC. The prosecutor 

also stated that, if a plea was not reached, it would be amending the information to add counts of 

first-degree CSC. At that time, defendant’s first attorney asked for time to discuss it with 

defendant. When court reconvened on February 12, the defense attorney stated that defendant 

refused to discuss the plea and wanted a new lawyer. By the pretrial hearing on February 27, 

defendant had new counsel and the prosecutor placed a second plea offer on the record, again 

involving defendant’s guilty plea to three counts of second-degree CSC in exchange for which 
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the prosecutor would not amend the information to add first-degree CSC. Defendant’s second 

attorney stated that he had discussed the plea offer with defendant, and that defendant “was not 

interested in the plea.” In response to the trial court’s questions, defendant confirmed that he had 

heard the plea offer and that it was his decision to reject it. At a subsequent hearing on July 23, 

defendant’s second attorney advised the trial court that defendant was dissatisfied with his 

services and, among other complaints, believed that his attorney had not adequately explained 

the second plea offer to him. In response, the trial court stated: 

The plea negotiation in this matter before the remand to District Court was clearly 

explained to you and was made part of the court record. You were absolutely 

aware of the ramifications of you going forward to an examination and the 

amendment from the prosecution to criminal sexual conduct in the first degree. 

[Defendant], it was on this record in front of me right here. 

The record of later proceedings also discloses that defendant continued to express that he had no 

interest in negotiating or accepting a plea offer. For example, on the first day of trial, defense 

counsel (defendant’s third attorney) stated for the record that he tried to “persuade” defendant to 

plead, but that defendant “is adamantly proclaiming his innocence” and “in the event that 

[defendant] is convicted, [the defense attorney] want[ed] it known that [he] did discuss with 

[defendant] a possible sentence agreement.” On the record presented, it is abundantly clear that 

defense counsel conveyed plea offers to defendant and that those offers were rejected because 

defendant believed in his innocence; thus, defendant has failed to establish that he was denied the 

effective assistance of his counsel on this ground.5

 See Lafler v Cooper, ___ US ___; 132 S Ct 

1376, 1384-1385; 182 L Ed 2d 398 (2012); People v Douglas, 496 Mich 557, 596-598; 852 

NW2d 587 (2014). 

3. FAILURE TO FOLLOW DEFENDANT’S INSTRUCTIONS 

 Finally, we also reject defendant’s claims that defense counsel was ineffective for failing 

to act in accordance with defendant’s instructions or failing to consult with defendant about what 

evidence to present at trial. As noted, decisions about defense strategy, including what 

arguments to make, what evidence to present, whether to call witnesses, and how to impeach 

witnesses are matters of trial strategy. Rockey, 237 Mich App at 76. Counsel has wide 

discretion in matters of trial strategy, People v Heft, 299 Mich App 69, 83; 829 NW2d 266 

(2012), and “this Court will not second-guess defense counsel’s judgment on matters of trial 

strategy,” Benton, 294 Mich App at 203. Defendant has not identified any act or omission by 

counsel that prejudiced his case. 

 

5

 Defendant asserts in his affidavit that his second attorney did not explain the possibility of 

pleading no contest. There is no indication in the record that defendant had an opportunity to 

plead no contest in this case. Furthermore, as discussed, his comments throughout the 

proceedings and in his affidavit indicate that he had no interest in entering a plea. Indeed, even 

in his affidavit, defendant acknowledges that he was not willing to enter a plea because he denied 

that he committed any sexual offenses against MR. 
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 In particular, defendant argues that defense counsel should have called “Nicole,” whom 

defendant claims is the person who smeared his semen on the t-shirt, and “each woman with 

whom the defendant has had a sexual relationship” to testify “that the defendant does not have 

any sexual interest in underage[] girls.” Defense counsel has a duty “to make reasonable 

investigations or to make a reasonable decision that makes particular investigations 

unnecessary,” including an obligation to investigate key potential witnesses. People v 

Trakhtenberg, 493 Mich 38, 52-55; 826 NW2d 136 (2012) (citation omitted). However, 

ultimately, the failure to present a witness can constitute ineffective assistance only where it 

deprives the defendant of a substantial defense. People v Payne, 285 Mich App 181, 190; 774 

NW2d 714 (2009). In this case, defense counsel worked with an investigator to attempt to locate 

defendant’s witnesses and to support defendant’s claimed defense. Defendant stated on the 

record that defense counsel advised him that his proposed witnesses were “no good.” Given that 

counsel did investigate defendant’s proposed witnesses, defendant has not overcome the strong 

presumption that counsel chose not to call these witnesses as a matter of trial strategy. Rockey, 

237 Mich App at 76. Further, defendant has not provided a witness affidavit from “Nicole” or 

any other witness, or identified any other evidence of record establishing that any witness 

actually could have provided favorable testimony at trial. Absent such a showing, defendant has 

not established that he was prejudiced by defense counsel’s failure to call these witnesses at trial. 

Cf. People v Davis, 250 Mich App 357, 369; 649 NW2d 94 (2002). 

 We also reject defendant’s claim that defense counsel should have called an expert in 

“sexual disorders” to “explain to a jury that pedophilia does not just suddenly erupt out of 

nowhere[.]” Defendant has not made an offer of proof regarding the substance of any testimony 

that an expert witness could have offered. See Hoag, 460 Mich at 6. A defendant cannot 

establish his claim of ineffective assistance of counsel using speculation that an expert would 

have testified favorably. Payne, 285 Mich App at 190. Moreover, defendant has failed to 

overcome the presumption that defense counsel’s decision not to call an expert witness was 

reasonable trial strategy. Id. 

 Defendant also argues that defense counsel should have pursued a proposed defense 

theory based on an alleged cellular telephone text message that allegedly contains an extortion 

attempt by defendant’s former wife (not MR’s mother) to file false sexual assault charges if 

defendant did not turn over certain property to her. Defendant has not presented us with these 

purported messages, nor has he explained how this evidence would have added anything of value 

to his defense in this case. There is no record evidence that defendant’s former wife had any 

direct involvement in this case. Defendant has not overcome the presumption that counsel 

exercised reasonable strategy by not presenting a seemingly unconnected extortion attempt by 

his former wife, or shown a reasonable probability that the result of the trial would have been 

different had he done so. Armstrong, 490 Mich at 289-290. 

 In his last complaint, defendant provides a litany of questions that he contends defense 

counsel should have asked MR in order to impeach her credibility. Decisions regarding how to 

question witnesses are presumed to be matters of trial strategy, Horn, 279 Mich App at 39, and 

the record does not show that defense counsel’s proffered defense or impeachment efforts were 

objectively unreasonable or prejudicial. Although defense counsel did not ask every particular 

question now proposed by defendant, defense counsel cross-examined MR at length about her 

testimony and was successful in revealing some inconsistencies in her recount of what occurred. 
-12- 

Further, to the extent defendant and counsel more generally disagreed over the appropriate 

defense to pursue, in the lower court record, counsel explained that an investigator “failed to find 

evidence supporting [defendant’s] proposed defense and the rules of evidence prevented 

[counsel] from presenting the defense that [defendant] wished.” Overall, having reviewed the 

record, we see nothing objectively unreasonable or prejudicial in counsel’s performance. “The 

fact that defense counsel’s strategy may not have worked does not constitute ineffective 

assistance of counsel.” People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 

(1996). 

 Affirmed. 

/s/ Joel P. Hoekstra 

/s/ Jane E. Markey 

/s/ Pat M. Donofrio