-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED September 15, 2016

v No. 327488 Wayne Circuit Court EUGENE R. WILLIAMS, LC No. 14-009624-01-FH

Defendant-Appellant.

Before: C AVANAGH , P.J., and S AAD and F ORT H OOD , JJ.

P ER C URIAM

. A jury convicted defendant of being a felon in possession of a firearm, MCL 750.224f, carrying a concealed weapon, MCL 750.227, and possession of a f irearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sent enced to “straight” probation for his felon in possession of a firearm and carrying a conceal ed weapon convictions, and two years’ imprisonment for his fe lony-firearm conviction. Defenda nt appeals, and we affirm.

At approximately 10:15 p.m. on October 21, 2014, officers Jeff rey Banks, William Zeolla, and Daniel Harnphanich were on patrol in the same vehic le in a neighborhood in Detroit, Michigan. As the officers were on Santa Maria Street, they hea rd multiple gunshots nearby. Zeolla then turned the vehicle onto Heyden Street where the off icers observed defendant standing in front of a home located at 17187 Heyden, which was known to be vacant to the officers. As Zeolla pulled in front of the home, defendant wal ked through the front door and toward the back of the house. Banks testified that he then obs erved defendant remove a shiny object from his waistband. Zeo lla and Harnphanich testified th at they were able to identify the item as a silver handgun. Defenda nt then turned and walked int o a bedroom on the first floor of the home.

As defendant entered the bedroom, the officers entered the hom e. Banks immediately encountered defendant in the hallway outside of the bedroom and detained him. After the officers swept the home for other individuals, Zeolla entered t he bedroom and noticed the handle of a handgun sticking out beneath a pile of clothes on the floo r. Zeolla confiscated the handgun, which was a silver, semi-automatic 9-mm firearm. At trial, the parties stipulated that defendant had previously been convicted of a felony and had not had his r ight to possess a firearm restored on October 21, 2014.

I. JUDICIAL BIAS-2- Defendant argues that the trial court displayed judicial bias when it made a comment regarding law enforcement to the venire just prior to jury sele ction. We disagree.

In order to preserve the issue of judicial bias, the defendant must object to the trial court’s conduct at trial. People v Paquette , 214 Mich App 336, 340; 543 NW2d 342 (1995). When the trial court made the contested remarks, counsel for defendant d id not object. Therefore, this issue is not preserved. This Court reviews unpreserved issues for plain error affecting a defendant’s substantial rights. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). In order to avoid forfeiture of the issue, (1) error must have occ urred (2) the error must have been plain, i.e., clear or obvious and (3) the plain error affected the defendant’s substantial rights. Id

. (citation omitted). This third requirement is satisfied if the defendant can demonstrate prejudice, i.e., that the error affected the outcome of the lower court pr oceedings. Id . Additionally, if the defendant satisfies these three requirements, this Court will o nly grant reversal when the plain error resulted in the conviction of an innocent defendant or “s eriously affected the fairness, integrity, or public reputation of judicial proceedings.” Id . at 763-764.

A criminal defendant is entitled to a “neutral and detached ma gistrate.” People v Cheeks
, 216 Mich App 470, 480; 549 NW2d 584 (1996) (quotation marks and citation omitted). “A defendant claiming judicial bias must overcome a heavy presumpt ion of judicial impartiality.” People v Jackson , 292 Mich App 583, 598; 808 NW2d 541 (2011) (quotation marks a nd citation omitted). “If the trial court’s conduct pierces the veil of ju dicial impartiality, a defendant’s conviction must be reversed.” Id . (question marks and citation omitted). “A judge’s conduct pierces this veil and violates the constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy or p artiality against a party.” People v Stevens , 498 Mich 162, 171; 869 NW2d 233 (2015). The circumstances to consider include “the nature of the judicial conduc t, the tone and demeanor of t he trial judge, the scope of the judicial conduct in the context of the length and complexity of the trial and issues therein, the extent to which the judge’s condu ct was directed at one side mo re than the other, and the presence of any curative instructions.” Id . at 172.

Just prior to jury selection, th e trial court introduced its s taff to the venire. As the trial court was introducing its deputy, the court stated, “[T]hey do a fantastic job. I know all this stuff about the police with this that and the other thing, but withou t them the criminals would be running wild so they do a great job.” A rev iew of the record d emonstrates that the trial court was simply attempting to compliment its deputy and to clear up what the court believed to be misconceptions regarding police in general. While the comment was unnecessary given the setting, it cannot be said that it pierced the veil of judicial impartiality. Jackson , 292 Mich App at 598. The nature and tone of the remark seemed to be lighthe arted, and the remark was very brief considering it was an isolated statement during the cours e of a two-day trial. Although the conduct complimented police in gen eral, it did not comment on t he conduct of the officers in this case or whether they could be cons idered credibl e witnesses.

Notably, the trial c ourt did provide a cur ative instruction. As the trial court was giving its jury instructions, it stated that “my comments, rulings, and in structions are . . . not evidence.” The court also stated that “when I make a comment or give an in struction, I am not trying to influence your vote or express a personal opinion about the cas e. If you believe that I have an-3- opinion about how you should decide the case, you must pay no a ttention to that opinion.” The court further instructed that te stimony from police officers “i s to be judged by the same standard that you use to evaluate the testimony of any other witness.” It is well established that “[j]urors are presumed to follow their instructions, and it is presumed t hat instructions cure most errors.” People v Mahone , 294 Mich App 208, 212; 816 NW2d 436 (2011). Therefore, we ho ld that the trial court’s remark did not impermissibly taint the proceeding s and that defendant is not entitled to a new trial.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that he was de nied the effective assistance o f counsel. We disagree.

The ultimate constitutional issu e arising from an ineffective assistance of counsel claim is reviewed de novo. People v LeBlanc , 465 Mich 575, 582; 640 NW2d 246 (2002). Any findings of fact are reviewed for clear error. Id . at 583. But because no evidentiary hearing was held, our review is for errors apparent from the record. People v Mack , 265 Mich App 122, 125; 695 NW2d 342 (2005).

In order to prevail on an ine ffective assistance of counsel cl aim, “a defendant must show that counsel’s performance fell below an objective standard of reasonableness, and that the representation so prejudiced the defendant as to deprive him of a fair trial.” People v Pickens
, 446 Mich 298, 338; 521 NW2d 797 (1994). “Because of the diffic ulties inherent in making the evaluation, a court must indulge a strong presumption that coun sel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v Washington , 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (19 84). In order for the defenda nt to satisfy the prejudice prong of the analysis, “a court must conclude that there is ‘a reason able probability that, absent the errors, the factfinder would have had a reasonable doubt respec ting guilt.’ ” Pickens , 446 Mich at 312, quoting Strickland
, 466 US at 695.

A. FAILURE TO FILE A MOTION IN LIMINE

Defendant claims that the performance of his trial counsel was deficient where counsel failed to timely file a motion in limine to exclude testimony r egarding a prior narcotics raid at 17187 Heyden. We disagree.

At the preliminary examination (and at trial), there was testi mony that the officers were familiar with 17187 Heyden because they had conducted a raid on the house several weeks earlier. Just before jury sel ection began, defense counsel mad e an oral motion in limine to exclude this testimony at trial. The prosecution argued that t he testimony provided context regarding how the officers were familiar with the home. The pr osecution also argued that the testimony was relevant because guns are often used to protect n arcotics. The trial court noted that the deadline for such motions had passed and that the moti on should have been filed earlier so the court could have held a hearing. The court then denied the motion based on the fact that the evidence explained how the officers knew of the home initia lly. The court also acknowledged that the testimony was prejudicial but implied tha t is was not unfairly prejudicial under MRE 403.-4- Here, defendant has not shown how counsel’s failure to make th e motion earlier would have resulted in a different ruling by the trial court, let alo ne a different verdict from the jury. On appeal, defendant relies on the belief that the evidence was inadmissible under MRE 403 because it was unduly prejudicial. But the trial court, withou t expressly citing to MRE 403, implicitly found that the evidence was not unduly prejudicial u nder this court rule. Hence, defendant has failed to show how, assuming counsel’s performanc e was deficient due to the failure to file the motion earlier, the result of the proceedin g would have been any different had counsel timely filed the motion. Moreover, assuming arguendo t hat counsel’s performance was deficient and that the trial court would have granted a timely motion in limine, thereby preventing the jury from hearing about the prior drug raid at t he house, defendant has not shown that there was a reasonable likelihood that the outcome of the proceeding would have been different. Here, police officers testified consistently that d efendant had an object that looked like a silver gun in his hand and one of the officers, in fact, foun d a silver handgun in the bedroom in which defendant entered. Accord ingly, the jury s till would hav e convicted defendant for the handgun offenses, regardless of the jury’s awareness that the h ouse was the site of a previous narcotics raid, and defendant ca nnot sustain his claim of ineff ective assistance. 1

B. FAILURE TO REQUEST TESTING

Defendant argues that the performance of his trial counsel was deficient where counsel failed to request gunshot residue testing or fingerprint testin g for the weapon. Defendant claims that because Zeolla testified that the gun in question smelled like it had recently been fired, defendant’s hands and clothes should have been tested for gunsh ot residue in order to prove that he never fired, and thus never possessed, the gun. This Court has held that decisions regarding what evidence to present, and how to argue the case, are matter s of trial strategy. People v Rockey , 237 Mich App 74, 76; 601 NW2d 887 (1999). While counsel did fail to request gunshot residue testing, she did impeach the officers regarding their f ailure to conduct the test or to search for shell casings. On cr oss-examination, counsel asked Zeolla, “did you have Mr. Williams tested for gunshot residue?” After Zeolla responded t hat he did not, counsel questioned Zeolla regarding his fa ilure to search for shell cas ings despite the fact that the gun in question dispenses shell casings.

More importantly, counsel’s fa ilure to request the testing on her own was likely strategic. The record is silent regarding wh at such tests would reveal. T his fact alone precludes defendant from obtaining any relief on this issue. See People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999) (stating that a defendant must es tablish the factual predicate for his claim of ineffective assistance). Regardless, two eyewitnesses, Zeolla and Harnphan ich, testified that they observed defendant remove the weapon from his waistband, while Banks tes tified that he observed defendant remove a shiny object. Zeolla also testified that wh en he retrieved the gun, he thought is smelled like it had recently been discharged. Counsel could have surmised that if testing was accomplished, there was a strong likelihood that it would have been damning for defendant; and

1 For the same reason, defendant’s alternate claim that the tria l court erred when it admitted the evidence fails because any error ultimately would be harmless.-5- in that instance, no amount of impeaching of the witnesses woul d have been successful. Therefore, it cannot be said th at counsel’s failure to request testing for gunshot residue or fingerprints “fell below an obj ective standard of reasonablenes s.” Pickens , 446 Mich at 338.

C. FAILURE TO HIRE INVESTIGATOR

Defendant cursorily avers that the performance of his trial co unsel was deficient where counsel failed to request an investigator to examine the lighti ng conditions at 17187 Heyden. Once again, decisions regarding what evidence to present are ma tters of trial strategy. Rockey
, 237 Mich App at 76. However, defendant does not explain what s uch an investigation would have revealed, which is fatal to defendant’s claim. See Hoag , 460 Mich at 6. For us to grant defendant the relief he seeks, we would have to speculate that an investigation would have uncovered “something” that would have cast grave doubt as to th e ability of the officers to see into a lit house during the evening hours. We decline to do so

. 2 Thus, it is impossible for defendant to show how counsel’s f ailure to have an expert condu ct an investigation affected the trial in any manner, and his clai m of ineffective assistance ne cessarily fails.

Affirmed.

/s/ Mark J. Cavanagh /s/ Henry William Saad /s/ Karen M. Fort Hood

2 Moreover, defendant’s contention that the officers “could not have seen what they purported to see from the vantage point that they had in the dark” misses th e mark. While the officers may have been in the dark street, they were looking into a house that was illuminated from the inside

. The record shows that this is not an instance where the officer s were looking into an unilluminated area. Additionally, the state of the illuminatio n is somewhat irrelevant when the officers went inside the home a nd saw, in close proximity, defe ndant exit the room from which they later discovered the gun.