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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

June 28, 2016 

v No. 326661 

Kent Circuit Court 

DONALD MACKAY HALE, JR., LC No. 14-008436-FC 

 Defendant-Appellant. 

Before: STEPHENS, P.J., and BECKERING and GLEICHER, JJ. 

PER CURIAM. 

 Defendant, Donald Hale, Jr., was convicted by a jury of armed robbery, MCL 750.529; 

first-degree home invasion, MCL 750.110a(2); unlawful imprisonment, MCL 750.349b; thirddegree fleeing and eluding a police officer, MCL 750.479a(3); and possession of a firearm 

during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced 

defendant as a second-offense habitual offender, MCL 769.10, to 28 to 84 years’ imprisonment 

on his armed robbery conviction; 15 to 30 years’ imprisonment on his first-degree home invasion 

conviction; 12 to 22 years, 6 months’ imprisonment on his unlawful imprisonment conviction; 3 

years, 6 months to 7 years, 6 months’ imprisonment on his third-degree fleeing and eluding 

conviction; and two years’ imprisonment on his felony-firearm conviction. We affirm 

defendant’s convictions but remand for further sentencing proceedings consistent with this 

opinion. 

I. SUFFICIENCY OF THE EVIDENCE 

 Defendant first challenges the sufficiency of the evidence with respect to each of the 

charged crimes, except for third-degree fleeing and eluding a police officer. We review 

challenges to the sufficiency of the evidence de novo. People v Ericksen, 288 Mich App 192, 

195; 793 NW2d 120 (2010). Viewing the evidence in a light most favorable to the prosecution, 

we must determine whether the evidence was sufficient to justify the jury’s finding that the 

essential elements of the charged crimes were proven beyond a reasonable doubt. People v 

Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). All conflicts in the evidence must 

be resolved in favor of the prosecution. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 

(1992), amended 441 Mich 1201 (1992). Circumstantial evidence and all reasonable inferences 

drawn therefrom constitute satisfactory proof of the crime. People v Carines, 460 Mich 750, 

757; 597 NW2d 130 (1999). 
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 Defendant does not dispute on appeal that the charged crimes occurred; he only 

challenges whether the evidence was sufficient to establish his identity as the individual who 

committed them. “[I]dentity is an element of every offense.” People v Yost, 278 Mich App 341, 

356; 749 NW2d 753 (2008). A positive identification by a witness “may be sufficient to support 

a conviction of a crime.” People v Davis, 241 Mich App 697, 699; 617 NW2d 381 (2000). 

 In this case, there was sufficient evidence supporting the jury’s finding that defendant 

committed the charged offenses. Defendant made several admissions in jail calls after his arrest 

that implicated him in the crimes. For example, he stated that he was “sorry” and “probably 

going to be gone for a long time”; discussed the number of individuals present in the home 

during the home invasion and armed robbery and stated that one of the victims was lying about 

how many individuals were present; and admitted the identity of his accomplice—albeit through 

an alias. Defendant claims that his statements are not admissions of guilt, but rather are 

explainable under the circumstances of this case. We disagree and find that, when viewing this 

evidence in a light most favorable to the prosecution, Harverson, 291 Mich App at 175, it 

supports defendant’s identity as the perpetrator of the charged offenses. 

 Defendant was also identified as the perpetrator of the charged offenses by multiple 

witnesses who were present in the home during the home invasion and armed robbery. 

Defendant argues for various reasons that each of these witnesses lacked credibility, thus 

undermining the reliability of the jury’s verdict. However, credibility issues regarding 

identification testimony are questions for the trier of fact, which we will not disturb on appeal. 

Davis, 241 Mich App at 699-700. See also People v Young, 472 Mich 130, 143; 693 NW2d 801 

(2005) (“Fundamentally, it is the province of the jury to assess the credibility of the witnesses.”). 

It is reasonable to expect that witness testimony will differ in some respects. And here, although 

defendant criticizes the various witnesses based on relatively minor inaccuracies in their 

testimony, he ignores the fact that all of the witnesses consistently identified him as the 

perpetrator who entered the home with a shotgun. Thus, the witnesses’ positive identifications of 

defendant as the perpetrator of the charged offenses supported the jury’s ultimate finding. 

 Moreover, defendant’s accomplice, Michael Whitfield, also testified regarding 

defendant’s involvement in the charged offenses. “A jury may convict on the basis of 

accomplice testimony alone,” and the credibility of an accomplice is a question for the jury. 

People v Heikkinen, 250 Mich App 322, 327; 646 NW2d 190 (2002). However, because “an 

accomplice may have a special interest in testifying,” the accomplice’s testimony is “suspect and 

must be received only with great care and caution.” Id. In this case, the jury was made aware of 

the fact that the accomplice had not been offered any deals by the prosecution in exchange for 

his testimony. The jury, therefore, was able to weigh the accomplice’s potential bias or prejudice 

and assess his credibility in this regard. See Young, 472 Mich at 143 (“[T]he jury should decide 

whether witnesses harbor any bias or prejudice.”). Given the jury’s verdict, it presumably found 

the accomplice’s testimony credible, and we will not disturb that credibility determination on 

appeal. Wolfe, 440 Mich at 514-515. 

 Finally, other evidence presented at trial supported defendant’s convictions of the 

charged crimes. After the home invasion and robbery occurred, and police began pursuit of 

potential suspects, defendant failed to stop his vehicle for a police officer and eventually fled on 

foot from the officer into a wooded area. Although evidence of flight is insufficient on its own 
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to sustain a conviction, flight indicates a “consciousness of guilt.” People v Coleman, 210 Mich 

App 1, 4; 532 NW2d 885 (1995). Additionally, officers searched defendant’s vehicle and found 

evidence connected to the robbery, including a red bandana reported to be worn by one of the 

suspects, a sawed-off shotgun, and items stolen during the home invasion—a wallet belonging to 

one of the victims, approximately $6,000 in cash, and the jewelry taken from the victims’ home. 

The evidence also established that duct tape had been used to restrain one of the victims during 

the offense, and a roll of duct tape was located in defendant’s vehicle. Therefore, when viewing 

the evidence in a light most favorable to the prosecution, Harverson, 291 Mich App at 175, we 

find that sufficient evidence was presented to establish defendant’s identity as the perpetrator of 

the charged crimes beyond a reasonable doubt. 

II. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Next, defendant argues that defense counsel was ineffective for failing to present an 

expert witness to explain the inherent problems in eyewitness identification to the jury. Because 

this issue is unpreserved, our review is limited to mistakes apparent on the lower court record. 

People v Fike, 228 Mich App 178, 181; 577 NW2d 903 (1998). Defendant must establish that 

counsel’s performance fell below an objective standard of reasonableness and that, but for 

counsel’s error, there is a reasonable probability that the outcome of trial would have been 

different. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). 

 Defense counsel’s decision not to present an eyewitness identification expert did not fall 

below an objective standard of reasonableness. The decision whether to call a witness is 

presumed to be a matter of trial strategy. People v Rockey, 237 Mich App 74, 76; 601 NW2d 

887 (1999). Contrary to defendant’s claim that there was no strategy apparent in counsel’s 

decision not to present an expert on eyewitness identification, the record supports that counsel 

may have had a “legitimate strategic decision” for failing to do so. See People v Gioglio, 296 

Mich App 12, 22-23; 815 NW2d 589 (2012), vacated in part on other grounds 493 Mich 864 

(2012). As is apparent from the record, defense counsel made a strategic decision to challenge 

the witnesses’ identifications of defendant through cross-examination, rather than through an 

expert witness. Defense counsel may have decided to do so out of concern “that the jury would 

react negatively to perhaps lengthy expert testimony that it may have regarded as only stating the 

obvious,” for example, that numerous psychological factors, including trauma, can impact the 

accuracy of eyewitness identification. See People v Cooper, 236 Mich App 643, 658; 601 

NW2d 409 (1999). Defense counsel may also have feared that an expert witness’s testimony 

might serve to support a conclusion that the four identifications made in this case appeared 

accurate. 

 Nevertheless, even if an expert witness on eyewitness identification may have been 

helpful to the jury, defense counsel’s decision to instead attack the witnesses’ credibility through 

cross-examination does not fall below an objective standard of reasonableness. Counsel is not 

ineffective for using a trial strategy that is ultimately unsuccessful. People v Kevorkian, 248 

Mich App 373, 414-415; 639 NW2d 291 (2002). Therefore, we decline to find counsel 

ineffective in this regard. 
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III. DEFENDANT’S STANDARD 4 BRIEF 

 In addition to the previously addressed arguments raised by defendant’s appellate 

counsel, defendant filed a Standard 4 brief raising numerous issues. Defendant first argues that 

admission of identification testimony by three witnesses—Kristina Hernandez, Esteban Perez, 

and Jordan Perez—violated his due process rights. Because this argument was not preserved, 

review is limited to plain error affecting defendant’s substantial rights. Carines, 460 Mich at 

763. 

 Defendant cannot show plain error affecting substantial rights with regard to the various 

witnesses’ identifications. First, neither Esteban nor Jordan was subjected to an identification 

procedure by law enforcement officers. Instead, defendant asserts a due process violation on the 

basis that these witnesses either independently viewed or were shown by a family member a 

photograph of defendant before trial under impermissibly suggestive circumstances. Defendant, 

however, provides no legal authority supporting that an identification procedure without police 

involvement may constitute a due process violation. To the contrary, the United States Supreme 

Court in Perry v New Hampshire, ___ US ___; 132 S Ct 716, 730; 181 L Ed 2d 694 (2012), held 

that “the Due Process Clause does not require a preliminary judicial inquiry into the reliability of 

an identification when the identification was not procured under unnecessarily suggestive 

circumstances arranged by law enforcement.” (Emphasis added). Thus, due process concerns 

are not implicated by a pretrial identification unless the identification is “taint[ed]” by “improper 

state conduct.” Id. at 728. Without improper state conduct, it is the jury’s role to determine the 

reliability of such evidence, subject to the “safeguards built into our adversary system.” Id. at 

728-729. Because defendant has not established that Esteban’s and Jordan’s identifications of 

defendant were tainted by improper state conduct, we find no plain error affecting defendant’s 

substantial rights, and defendant’s due process challenge fails with respect to their identification 

testimony. Carines, 460 Mich at 763. 

 Second, Hernandez was subject to a show-up identification procedure arranged by law 

enforcement; thus, due process concerns are implicated by evidence of her identification of 

defendant. Perry, 132 S Ct at 730. An identification procedure constitutes a denial of due 

process when it is “unnecessarily suggestive and conducive to irreparable misidentification.” 

People v Williams, 244 Mich App 533, 542; 624 NW2d 575 (2001). A defendant must establish 

that, in examining the totality of the circumstances, the identification procedure used was so 

suggestive that it resulted in a substantial likelihood of misidentification. People v Kurylczyk, 

443 Mich 289, 302; 505 NW2d 528 (1993). Relevant factors to consider include “the 

opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of 

attention, the accuracy of the witness’ prior description of the criminal, the level of certainty 

demonstrated by the witness at the confrontation, and the length of time between the crime and 

the confrontation.” Id., quoting Neil v Biggers, 409 US 188, 199-200; 93 S Ct 375; 34 L Ed 2d 

401 (1972). 

 Concerning her ability to view the suspect at the time of the crime and her degree of 

attention, Hernandez testified that the robbery lasted approximately 5 to 10 minutes from the 

time the two suspects broke into her home. She testified that she was able to observe defendant 

for “more than enough time to be certain” of his identity. Although Hernandez testified that 

defendant’s face was partially obscured by a bandana, she was able to view his hair and eyes, 
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and she was able to observe his clothing. Additionally, she explained that she was fully focused 

on defendant because he was the individual carrying a gun. In regard to the accuracy of 

Hernandez’s initial description, we note, perhaps because this issue is unpreserved, that there is 

little information concerning Hernandez’s initial description of the perpetrator. However, we 

have gleaned certain details from her trial testimony concerning what she told a 911 operator and 

concluded that, although there were a few discrepancies, her description was fairly accurate to 

defendant’s appearance at the time of his arrest. Hernandez indicated that the suspect had 

dreadlocks, and defendant, when apprehended, had dreadlocks, albeit dreadlocks that were 

pulled into a ponytail. He also wore camouflage pants at the time of his arrest, which is 

generally consistent with Hernandez’s description given in a 911 telephone call that the suspect 

wore camouflage shorts. However, as defendant points out, Hernandez never described 

defendant’s heavily-tattooed arms, despite consistently stating that defendant wore a sleeveless 

shirt. 

 Finally, concerning the last two factors, Hernandez testified that she was certain about 

her identification of defendant. Additionally, defendant was arrested shortly after the incident 

occurred, and Hernandez was taken by officers to identify him in a show-up procedure the same 

evening of the robbery and home invasion. 

 Examining the totality of the circumstances we find that, although defendant was singled 

out during the show-up procedure, defendant fails to show that the procedure used was so 

necessarily suggestive as to lead to a substantial likelihood of misidentification. Kurylczyk, 443 

Mich at 302; People v Colon, 233 Mich App 295, 304; 591 NW2d 692 (1998) (“Simply because 

an identification procedure is suggestive does not mean it is necessarily constitutionally 

defective.”). Hernandez had a good opportunity to view defendant during the offense without 

significant distraction, she was certain in her identification of defendant at the show-up, and the 

show-up occurred in the same night as the offense. A prompt confrontation after the crime was 

committed promotes fairness by assuring greater reliability. See People v Winters, 225 Mich 

App 718, 725; 571 NW2d 764 (1997). It does not appear that the police acted for a reason other 

than to determine whether defendant was connected with the robbery, and, thus, subject to arrest. 

Id. at 727. Moreover, while there were a couple of inaccuracies between Hernandez’s initial 

description of the suspect and defendant’s appearance at the time of his arrest, her description 

was, generally, accurate. Finally, the fact that Hernandez initially misidentified defendant’s 

accomplice does not affect this analysis. Hernandez admitted that her focus was primarily on 

defendant during the offense, given that he was carrying a weapon. She also testified that she 

was able to view defendant’s face better than the alleged accomplice’s face during the show-up 

procedure. Furthermore, Hernandez admitted that she made a misidentification regarding the 

second suspect, but she never wavered in her certainty as to defendant. We therefore find that no 

plain error requiring reversal existed with respect to Hernandez’s identification of defendant, and 

that defendant’s due process argument is without merit. 

 Next, defendant claims that the prosecutor committed misconduct by vouching for the 

credibility of witnesses, disparaging defense counsel, arguing facts not in evidence, and 

appealing to the sympathy of the jury. We generally review challenges of prosecutorial 

misconduct de novo. People v Akins, 259 Mich App 545, 562; 675 NW2d 863 (2003). We 

decide issues on a case-by-case basis by reviewing the pertinent part of the record and evaluating 

the prosecutor’s conduct in context. Id. However, because defendant failed to preserve his 
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issues for appeal through a contemporaneous objection and request for a curative instruction at 

trial, People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010), our review is limited to 

plain error affecting defendant’s substantial rights, Carines, 460 Mich at 763-764. 

 Prosecutors are given “great latitude regarding their arguments and conduct,” People v 

Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995) (citations and quotation marks omitted), and 

are free to argue the evidence and any reasonable inferences arising therefrom in presenting their 

theory of the case, People v Goodin, 257 Mich App 425, 433; 668 NW2d 392 (2003), citing 

Bahoda, 448 Mich at 282. While a prosecutor is free to argue from the facts that a witness 

should be believed, a prosecutor may not vouch for the credibility of a witness by implying that 

he or she possesses “special knowledge” of the witness’s truthfulness. People v McGhee, 268 

Mich App 600, 630; 709 NW2d 595 (2005). 

 Defendant first claims that the prosecutor improperly vouched for Hernandez’s credibility 

during opening statement by stating that Hernandez “did the right thing” when she informed 

police that she had initially misidentified a different suspect as defendant’s accomplice in the 

charged offenses. This comment in no way insinuates that the prosecutor possessed “special 

knowledge” of Hernandez’s truthfulness. Thus, we find no plain error with respect this 

statement. 

 Defendant next, under the auspices of a prosecutorial misconduct challenge, argues that 

Detective Thomas Heikkila improperly vouched for the credibility of the prosecution witnesses. 

Notably, however, the testimony challenged by defendant was not elicited by the prosecutor, but 

by defense counsel. See People v Dobek, 274 Mich App 58, 70-71; 732 NW2d 546 (2007) 

(focusing on whether the prosecutor elicited the challenged testimony in good faith). Thus, we 

find defendant’s claim of prosecutorial misconduct to be meritless in this regard.1

 

 Next, defendant argues that the prosecutor committed misconduct by disparaging defense 

counsel during her rebuttal closing argument. “A prosecutor may not suggest that defense 

counsel is intentionally attempting to mislead the jury.” People v Watson, 245 Mich App 572, 

592; 629 NW2d 411 (2011). However, the prosecutor’s remarks must be read in context, People 

v Kennebrew, 220 Mich App 601, 608; 560 NW2d 354 (1996), and “must be considered in light 

of defense counsel’s comments,” Watson, 245 Mich App at 592-593. In this case, each of the 

challenged remarks was made in direct response to defense counsel’s closing argument. “[A]n 

otherwise improper remark may not rise to an error requiring reversal when the prosecutor is 

responding to the defense counsel’s argument.” Kennebrew, 220 Mich App at 608. Thus, we 

find no plain error affecting defendant’s substantial rights with respect to the prosecutor’s 

remarks regarding defense counsel. 

 

1

 Moreover, to the extent Heikkila volunteered his testimony and defendant’s argument could be 

construed as a claim that Heikkila improperly commented on the credibility of another witness, 

we decline to find plain error requiring reversal because, given the strength of the evidence 

against defendant, there was no prejudice. 
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 Defendant next argues that the prosecutor argued a fact not in evidence by asserting that 

defendant wore a white undershirt in which he was arrested during the robbery. Defendant, 

however, fails to provide a record citation to the challenged statement, as required by MCR 

7.212(C)(7). Thus, we need not consider his claim of error. People v Petri, 279 Mich App 407, 

413; 760 NW2d 882 (2008). However, even if the prosecutor made the comment as alleged, the 

argument was a reasonable inference to draw from Hernandez’s testimony regarding the 

suspect’s clothing, specifically that he was wearing a “tank top” with “thicker straps than an 

undershirt,” during the commission of the offense. Goodin, 257 Mich App at 433. Therefore, no 

plain error has been established in this regard. 

 Lastly, defendant argues that the prosecutor improperly appealed to the sympathy of the 

jury and injected issues broader than defendant’s guilt or innocence by asking the jury to return a 

guilty verdict “on behalf of” the victims. In People v Truong (After Remand), 218 Mich App 

325, 339-340; 553 NW2d 692 (1996), we rejected a similar argument on the basis that it “neither 

injected issues broader than [the defendant’s] guilt or innocence of the charges nor encouraged 

the jurors to suspend their powers of judgment.” Accordingly, defendant has not established 

plain error resulting from the prosecutor’s remark.2

 

 Defendant next presents several claims of ineffective assistance of counsel in his 

Standard 4 brief. Because a panel of this Court denied defendant’s motion to remand for a 

Ginther3 hearing to create a factual record in support of these claims, our review is limited to 

mistakes apparent on the lower court record. Fike, 228 Mich App at 181. 

 Defendant first claims that counsel was ineffective for failing to admit the entirety of a 

jail call into evidence. According to defendant, only a portion of the call was played for the jury, 

which resulted in his statements being played out of context. Upon our review of the record 

provided to us, however, it does not establish that only a portion of the jail call was played. 

Defendant has the burden of establishing the factual predicate for his claim, and he has failed to 

do so here. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Accordingly, we do not find 

counsel ineffective on this basis. 

 Defendant next argues that defense counsel was ineffective for advising him not to testify 

at trial. “[A]n accused’s decision to testify or not is a strategic decision best left to an accused 

and his counsel.” People v Martin, 150 Mich App 630, 640; 389 NW2d 713 (1986). Here, 

defendant agreed on the record at trial that he understood his right to testify, but stated that he 

was “comfortable” with his decision not to do so. Defendant points to nothing in the record 

 

2

 Because no errors have been established with respect to the prosecutor’s statements at trial, we 

also reject defendant’s argument that he is entitled to reversal based on the cumulative effect of 

the alleged errors. Dobek, 274 Mich App at 106. Additionally, because any objection to the 

challenged remarks would have been futile, we reject defendant’s argument that his counsel was 

ineffective for failing to object. People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 

(2004). 

3 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 
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supporting that he wished to testify, but defense counsel prevented him from doing so. Thus, 

defendant’s claim that counsel was ineffective in this regard is without merit. 

 Next, defendant argues that defense counsel was ineffective for failing to admit 

defendant’s telephone records into evidence. This claim is entirely unsupported by the record. 

Defendant claims that his telephone records would show that he received a telephone call while 

driving with Whitfield before the offense, contrary to Whitfield’s testimony that defendant 

placed a call. However, our review of the record shows that Whitfield actually testified that 

defendant received a call. Further, defendant claims that admission of his telephone records 

would have supported his defense that he “was only going to the house to buy marijuana and was 

surprised when the two people he drove there turned it into an armed robbery.” We, however, 

cannot discern how mere telephone records would have demonstrated so much. Thus, because 

defendant has not established that counsel’s failure to admit the telephone records fell below an 

objective standard of reasonable, we decline to find that counsel was ineffective in this regard. 

Carbin, 463 Mich at 600. 

 Defendant also argues that counsel was ineffective for failing to request DNA testing of 

the red bandana located in defendant’s vehicle on the night of the incident. The decision whether 

to offer evidence at trial is presumed to be a matter of trial strategy, Rockey, 237 Mich App at 

736, and it appears here that counsel made the strategic decision to proceed without having the 

bandana tested. Part of the defense theory was that reasonable doubt stemmed from the State’s 

failure to test the bandana for DNA evidence, implying that the State failed to do so because the 

results may have been favorable to defendant’s case. Moreover, there was an obvious risk that 

DNA testing would have confirmed the presence of defendant’s DNA on the bandana, and, 

contrary to defendant’s argument, it would have been difficult for defense counsel to minimize 

the damaging effect of this evidence. Accordingly, because defendant has not overcome the 

presumption that defense counsel made a strategic decision not to request DNA testing of this 

evidence, defendant’s claim of ineffective assistance of counsel fails. Carbin, 463 Mich at 600. 

 Next, defendant argues that counsel was ineffective for failing to request a mere-presence 

jury instruction. See M Crim JI 8.5. “A criminal defendant has the right to have a properly 

instructed jury consider the evidence against him,” but a trial court is only required to give an 

instruction if the requested instruction is supported by the evidence. People v Mills, 450 Mich 

61, 80; 537 NW2d 909 (1995), mod on other grounds 450 Mich 1212 (1995). It is readily 

apparent from the plain language of the mere-presence instruction that the instruction only 

applies when the defendant is being charged on an aiding and abetting theory. See M Crim JI 

8.5. Defendant was not charged as an aider and abettor in this case, but rather as the principal 

actor who actually committed the charged offenses. Thus, the mere-presence instruction was not 

proper under the circumstances of this case, and defense counsel was not ineffective for failing to 

make a futile request. See Thomas, 260 Mich App at 457. Nevertheless, even if such an 

instruction had been given, defendant has not established that the outcome of his trial would have 

been different, given the overwhelming evidence supporting his guilt of the charged crimes. 

 Defendant next argues that defense counsel was ineffective for failing to challenge 

inaccurate information in his presentence investigation report (PSIR) at sentencing. Defendant 

claims that he was never shown the PSIR before sentencing in order to alert defense counsel to 

the inaccuracies. However, defendant’s claim is unavailing because he has not established that 
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the facts set forth in the PSIR are inaccurate or false. The description of the offense in the PSIR 

accurately describes Hernandez’s original report of the incident to police, the officers’ 

subsequent pursuit of the suspects, and defendant’s eventual arrest. The fact that Esteban is not 

mentioned in the description of the offense does not make the information inaccurate as 

presented, given that Hernandez did not initially report to police that Esteban was present when 

the crimes were committed. Moreover, defendant cannot establish how defense counsel’s failure 

to object to the alleged inaccuracies would have impacted the sentence he ultimately received. 

Therefore, defense counsel was not ineffective in this regard.4

 Defendant also has not established that he did not have the opportunity to review the 

PSIR before sentencing. Defense counsel affirmatively stated on the record at sentencing that 

“we’ve had the full and fair opportunity” to read and review the PSIR and had no objections to 

the information therein. (Emphasis added). Defendant remained silent and offered no 

contradiction to defense counsel’s statement. Accordingly, defendant’s argument to the contrary 

on appeal is not supported by the record. 

 Lastly, defendant argues that defense counsel was ineffective for failing to inquire into 

the potential bias of two jurors who alerted court staff during trial that they knew two individuals 

to whom witnesses had referred at trial. One of the individuals mentioned was a witness’s 

mother, and the other was the mother of one of defendant’s children. The decision to keep a 

juror on the jury panel—and not challenge or request removal of the juror—is a matter of trial 

strategy. See People v Unger, 278 Mich App 210, 258; 749 NW2d 272 (2008). Here, neither of

the individuals who the jurors claimed to know testified at trial or were directly involved as a 

victim or perpetrator of the charged crimes. Their credibility, therefore, was not at issue. 

Additionally, this information did not come to light until after the jury was sworn and trial had 

commenced. In explaining why he lodged no objection to keeping one of the jurors empaneled, 

defense counsel stated that the jury had been attentive during trial. Thus, defense counsel may 

have believed that it was in defendant’s best interest to move forward with the jury as 

empaneled. We presume that counsel’s decision not to request removal of the jurors or inquire 

further into the matter was sound trial strategy and find that counsel was not ineffective as 

alleged. See id. 

 

4

 In fact, counsel might have decided that it was beneficial to his client not to insist on adding to 

the PSIR the fact that there was another victim—at whom defendant pointed a gun—present 

during the armed robbery and home invasion. 
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 Finally, defendant raises a Sixth Amendment challenge based on People v Lockridge, 498 

Mich 358; 870 NW2d 502 (2015). He argues that offense variable (OV) 4,5

 OV 9,6 and OV 147

were scored based on facts not admitted by him or necessarily found by the jury. In Lockridge, 

498 Mich at 364, our Supreme Court held that “the rule from Apprendi v New Jersey, 530 US 

466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US 

___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and 

renders them constitutionally deficient.” The Court held “to the extent that OVs scored on the 

basis of facts not admitted by defendant or necessarily found by the jury verdict increase the 

floor of the guidelines range, i.e. the defendant’s ‘mandatory minimum’ sentence, that procedure 

violates the Sixth Amendment.” Id. at 373-374. As a result, the Court remedied the 

constitutional violation by severing MCL 769.34(2) to the extent it made the sentencing 

guidelines mandatory, and it found that the recommended minimum guidelines range was merely 

advisory. Id. at 364. 

 The prosecution concedes, and we agree, that OV 4, OV 9, and OV 14 were scored on the 

basis of facts not admitted by defendant or necessarily found by the jury. That is, by convicting 

defendant of the charged offenses, the jury was not required to find beyond a reasonable doubt 

that a victim suffered a psychological injury, MCL 777.34; that more than one victim was placed 

in danger of physical injury or loss of life, MCL 777.39; or that defendant was the “leader in a 

multiple offender situation,” MCL 777.44. By scoring each of these variables at zero points, 

defendant’s recommended minimum guidelines range is altered. Thus, judge-found facts were 

impermissibly used to increase the floor of the sentencing guidelines range, establishing a Sixth 

Amendment violation. Id. at 388-389. Defendant is, therefore, entitled to a remand based on the 

procedure articulated in Lockridge for the trial court “to determine whether [it] would have 

imposed a materially different sentence but for the constitutional error.” Id. at 397. This 

remand, described by our Supreme Court as a “Crosby[8] remand” requires that the trial court: 

should first allow a defendant an opportunity to inform the court that he or she 

will not seek resentencing. If notification is not received in a timely manner, the 

court (1) should obtain the views of counsel in some form, (2) may but is not 

required to hold a hearing on the matter, and (3) need not have the defendant 

present when it decides whether to resentence the defendant, but (4) must have the 

defendant present, as required by law, if it decides to resentence the defendant. 

 

5

 OV 4 addresses psychological injury to the victim, and should be scored at 10 points if a 

“[s]erious psychological injury requiring professional treatment occurred to a victim.” MCL 

777.34(1)(a). 

6

 OV 9 pertains to the number of victims “placed in danger of injury or loss of life or property,” 

and should be scored at 10 points when “2 to 9 victims [are] placed in danger of physical injury 

or death . . .” MCL 777.39(1)(c). 

7

 OV 14 addresses the offender’s role in the instant offense and should be scored at 10 points 

where the defendant “was a leader in a multiple offender situation.” MCL 777.44(1)(a). 

8 United States v Crosby, 397 F3d 103 (CA 2, 2005). 
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Further, in determining whether the court would have imposed a materially 

different sentence but for the unconstitutional constraint, the court should 

consider only the “circumstances existing at the time of the original sentence. [Id.

at 398 (citations and quotation marks omitted).] 

 We affirm defendant’s convictions, but remand for further sentencing proceedings 

consistent with this opinion. We do not retain jurisdiction. 

/s/ Cynthia Diane Stephens 

/s/ Jane M. Beckering 

/s/ Elizabeth L. Gleicher