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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

March 28, 2017 

v No. 330748 

Muskegon Circuit Court 

LAMEKE LATRICE BAILEY, LC No. 15-066333-FH 

 Defendant-Appellant. 

Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ. 

PER CURIAM. 

 Defendant, Lameke Latrice Bailey, was convicted by a jury of assaulting, resisting, or 

obstructing a police officer, MCL 750.81d(1); and felonious assault, MCL 750.82. Defendant 

was sentenced as a second-offense habitual offender, MCL 769.10, to 8 months in jail for her 

assaulting, resisting, or obstructing a police officer conviction and 8 months in jail for her 

felonious assault conviction, with credit for 32 days served. Additionally, defendant was 

sentenced to 16 months’ probation on both convictions. Defendant now appeals as of right. We 

affirm. 

I. BACKGROUND 

 This case arises out of an alleged domestic disturbance requiring the police to respond to 

a residence. Officer Gerald Anderson testified that on May 13, 2015, he was dispatched to a 

residence at 2920 Reynolds at approximately 11:50 p.m. based on information that there was a 

disturbance at the residence and that a person had been assaulted. He was informed that the 

victim of the assault was being treated for an eye injury at the emergency room and that there 

was an ongoing disturbance at the residence involving the 9-1-1 caller’s sister trying to get into 

the residence. Officer Anderson knew that the residence belonged to Turquoise Bailey, 

defendant’s sister, because he had previously responded to disturbances at that residence. 

 When Officer Anderson arrived at the residence, along with Officer Chris Stoddard, the 

front door was open. Officer Anderson could see into the home, although he could not see any 

activity. As he was standing at the door, he heard noises that sounded like a “disturbance” was 

occurring inside, including banging, thumping, and loud voices. The sound was very loud, “like 

a scruffle.” He could not tell what was being said, but the women “sounded like they were in 

distress,” although nobody was yelling for help at that point. Officer Chris Stoddard testified 

that the disturbance sounded like fighting and yelling. Officer Anderson knocked several times, 
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announced his presence as a police officer, and the two officers entered the residence after 

receiving no answer. They did not have a search warrant. Based on the banging and the 

disturbance that Officer Anderson heard inside the home, he believed that there was an 

emergency situation that permitted entry to the residence without a search warrant. Officer 

Stoddard testified that he also believed that there was an emergency or violent act occurring, 

based on the dispatch information that there was a domestic situation, along with hearing what 

sounded like fighting when they arrived at the residence. 

 Inside, the officers saw two women on top of defendant, pinning her to the floor. The 

two women that held defendant down were later identified as Jolene Bailey, defendant’s mother, 

and Turquoise. Officer Anderson told Jolene and Turquoise to let defendant get up, and they 

complied. Both officers were wearing their police uniforms. When defendant stood up, she said 

that she was not going to jail and that she was “not going down without a fight.” Defendant then 

grabbed a glass or ceramic lamp that was approximately 21⁄2 feet long, flipped it upside down, 

and swung it at the officers like a baseball bat. Officer Anderson testified that he ordered 

defendant to drop the lamp multiple times—“at least five” times—because he was concerned for 

the safety of the others in the residence, and defendant did not drop the lamp. After defendant 

barricaded herself in the bedroom, Officer Stoddard kicked the door open, and Officer Anderson 

went inside. Defendant swung the lamp at Officer Anderson, he blocked it with his hand, and 

the lamp hit his arm. Officer Anderson and Officer Stoddard wrestled defendant to the ground 

and continued to struggle with her. She kept her hands underneath her body and refused to allow 

the officers to put her hands into handcuffs, continuing to resist despite the officers’ commands 

to stop resisting. Eventually, the officers were able to forcibly place defendant’s hands into 

handcuffs, and they took her into custody. 

II. SUFFICIENCY OF THE EVIDENCE 

 Defendant first challenges the sufficiency of the evidence supporting her convictions, 

arguing that the police officers’ warrantless entry into the residence violated the Fourth 

Amendment to the United States Constitution, as well as the analogous provision of the 

Michigan Constitution, and that defendant was therefore legally permitted to resist the officers’ 

entry into the residence. We disagree. 

 This Court “review[s] de novo a challenge to the sufficiency of the evidence.” People v 

Henry (After Remand), 305 Mich App 127, 142; 854 NW2d 114 (2014). “[W]hen determining 

whether sufficient evidence has been presented to sustain a conviction, a court must view the 

evidence in a light most favorable to the prosecution and determine whether any rational trier of 

fact could have found that the essential elements of the crime were proven beyond a reasonable 

doubt.” People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201

(1992). “[A] reviewing court is required to draw all reasonable inferences and make credibility 

choices in support of the jury verdict.” People v Meshell, 265 Mich App 616, 621; 696 NW2d 

754 (2005) (quotation marks and citations omitted; alteration in the original). “All conflicts in 

the evidence must be resolved in favor of the prosecution,” and this Court “will not interfere with 

the jury’s determinations regarding the weight of the evidence and the credibility of the 

witnesses.” People v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008). “It is for the trier 

of fact, not the appellate court, to determine what inferences may be fairly drawn from the 
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evidence and to determine the weight to be accorded those inferences.” People v Hardiman, 466 

Mich 417, 428; 646 NW2d 158 (2002). 

 We review de novo the application of the legal principles contained in the Fourth 

Amendment of the United States Constitution and Article 1, § 11 of the Michigan Constitution. 

People v Slaughter, 489 Mich 302, 310; 803 NW2d 171 (2011). However, unpreserved issues, 

whether non-constitutional or constitutional, are reviewed for plain error affecting substantial 

rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). On plain-error 

review, the defendant has the burden to show (1) “error”; (2) that was “plain,” meaning “clear or 

obvious”; (3) and that affected substantial rights or caused prejudice, meaning “that the error 

affected the outcome of the lower court proceedings.” Id. at 763. 

 A person has a right that is guaranteed by both the federal and Michigan constitutions to 

be free from unreasonable searches and seizures. Herring v United States, 555 US 135, 139; 129 

S Ct 695; 172 L Ed 2d 496 (2009); Slaughter, 489 Mich at 310-311; US Const, Am IV; Const 

1963, art 1, § 11. “[T]he Michigan Constitution is to be construed to provide the same protection 

as that secured by the Fourth Amendment, absent compelling reason to impose a different 

interpretation.” Slaughter, 489 Mich at 311 (quotation marks and citation omitted). 

 “[A] Fourth Amendment search occurs when the government violates a subjective 

expectation of privacy that society recognizes as reasonable.” Kyllo v United States, 533 US 27, 

33; 121 S Ct 2038; 150 L Ed 2d 94 (2001). Furthermore, the United States Supreme Court has 

stated, “the Fourth Amendment draws a firm line at the entrance to the house.” Id. at 40 quoting 

Payton v New York, 445 US 573, 590; 100 S Ct 1371; 63 L Ed 2d 639 (1980). Whether a search 

or seizure was lawful is determined by evaluating its reasonableness. People v Beuschlein, 245 

Mich App 744, 749; 630 NW2d 921 (2001). “Searches and seizures conducted without a 

warrant are unreasonable per se, subject to several specifically established and well-delineated 

exceptions.” People v Borchard-Ruhland, 460 Mich 278, 293-294; 597 NW2d 1 (1999). 

 One recognized exception to the warrant requirement is the emergency-aid exception.1

 

People v Davis, 442 Mich 1, 11; 497 NW2d 910 (1993); see also Brigham City, Utah v Stuart, 

547 US 398, 403; 126 S Ct 1943; 164 L Ed 2d 650 (2006). “[T]he emergency-aid exception to 

the warrant requirement allows police officers to enter a dwelling without a warrant under 

circumstances in which they reasonably believe, based on specific, articulable facts, that some 

person within is in need of immediate aid.” People v Lemons, 299 Mich App 541, 545-546; 830 

NW2d 794, 797 (2013) (quotation marks and citation omitted). “[L]aw enforcement officers 

may enter a home without a warrant to render emergency assistance to an injured occupant or to 

protect an occupant from imminent injury.” Brigham City, 547 US at 403. “An action is 

reasonable under the Fourth Amendment, regardless of the individual officer’s state of mind, as 

 

1

 While the “community caretaking” exception is similar and has also been recognized by the 

Michigan Supreme Court, see People v Davis, 442 Mich 1, 11; 497 NW2d 910 (1993), our 

Supreme Court has held that “when the police are investigating a situation in which they 

reasonably believe someone is in need of immediate aid, their actions should be governed by the 

emergency aid doctrine, regardless of whether these actions can also be classified as community 

caretaking activities.” Id. at 25. 
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long as the circumstances, viewed objectively, justify [the] action,” and “[t]he officer’s 

subjective motivation is irrelevant.” Id. at 404 (quotation marks and citation omitted; first 

alteration in the original). Under the emergency-aid exception, “the entry must be limited to the 

justification therefor, and the officer may not do more than is reasonably necessary to determine 

whether a person is in need of assistance, and to provide that assistance.” Davis, 442 Mich at 26. 

The emergency-aid exception does not require a warrant or probable cause. People v Brzezinski, 

243 Mich App 431, 434; 622 NW2d 528 (2000). 

 Additionally, there is no rule that confers “automatic standing” to challenge the 

constitutionality of a search. People v Smith, 420 Mich 1, 20; 360 NW2d 841 (1984). “For an 

individual to assert standing to challenge a search, the individual must have had a legitimate 

expectation of privacy in the place or location searched, which expectation society recognizes as 

reasonable.” People v Brown, 279 Mich App 116, 130; 755 NW2d 664 (2008). “[T]his right is

personal and may not be invoked by third parties.” Id. “The defendant has the burden of 

establishing standing, and in deciding the issue, the court should consider the totality of the 

circumstances.” People v Powell, 235 Mich App 557, 561; 599 NW2d 499 (1999) (citation 

omitted). “Factors relevant to the determination of standing include ownership, possession 

and/or control of the area searched or item seized; historical use of the property or item; ability to 

regulate access; the totality of the circumstances surrounding the search; the existence or 

nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the 

expectation of privacy considering the specific facts of the case.” Brown, 279 Mich App at 130 

(quotation marks and citation omitted). The United States Supreme Court has held that a 

defendant’s “status as an overnight guest is alone enough to show that he had an expectation of 

privacy in the home that society is prepared to recognize as reasonable.” Minnesota v Olson, 495 

US 91, 93-94, 96-97; 110 S Ct 1684; 109 L Ed 2d 85 (1990) (where the police had information 

that defendant was staying in a residence other than his own, and the police entered that other 

residence without a warrant and apprehended the defendant). Therefore, an overnight guest “can 

claim the protection of the Fourth Amendment.” Id. at 100. 

 Here, as an initial matter, defendant has not demonstrated that she has standing to 

challenge the police officers’ warrantless entry of the residence at 2920 Reynolds. Officer 

Gerald Anderson testified that the residence belonged to Turquoise Bailey, defendant’s sister. 

There is no evidence that the residence belonged to defendant or that defendant was living or 

staying at the residence at the time of the incident. At defendant’s arraignment, the trial court 

asked defendant, “Now before you go are you still at 2920 Reynolds?” Defendant responded, 

“No I’m not there but the mail can come there.” The fact that defendant may have been able to 

receive mail at the residence belonging to Turquoise, or may have stayed there at some point, 

does not establish that defendant had, at the time of incident in question, any degree of 

ownership, possession, or control over the residence; the scant evidence on this point actually 

suggests that defendant was not staying there, and thus, under the totality of the circumstances, 

she could not have held any subjective expectation of privacy in the residence that was 

objectively reasonable. See Brown, 279 Mich App at 130. There is no evidence that defendant 

was an overnight guest at Turquoise’s residence that would allow her to potentially claim the 

protection of the Fourth Amendment. See Olson, 495 US 91, 93-94, 96-97, 99. Thus, defendant 

has not met her burden of establishing that she has standing to make this Fourth Amendment 

challenge. See Powell, 235 Mich App at 561; see also People v Parker, 230 Mich App 337, 339, 

340-341; 584 NW2d 336 (1998). 
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 Moreover, even if defendant had standing to make this challenge, the police entry in this 

case did not violate her constitutional protections against unreasonable searches and seizures 

because the entry was permissible under the emergency-aid exception to the warrant 

requirement. There was no dispute that the officers did not have a search warrant to enter the 

residence. However, considering the specific facts articulated by Officer Anderson and Officer 

Stoddard, it was reasonable for the officers to believe that somebody inside was in need of 

immediate aid, emergency assistance, or protection from imminent injury. See Lemons, 299 

Mich App at 545-546; Brigham City, 547 US at 403. The officers’ actions in this case were 

justified because, viewing the circumstances objectively, it was reasonable for the officers to 

conclude that somebody inside had been or could be injured, based on the yelling and fighting 

sounds that they heard, along with the dispatch information that an assault had already occurred 

at the residence requiring the victim to be treated at the emergency room. See Brigham City, 547 

US at 404. Officer Anderson then ordered Jolene and Turquoise to get off of defendant in an 

effort to end the fight that was occurring, which did not exceed the scope of the officers’ reason 

for entering. Davis, 442 Mich at 26. The officers only took action to attempt to arrest defendant 

in response to defendant’s initiation of violence when she threatened to fight the officers with a 

lamp. Therefore, the officers’ entry into the residence was reasonable pursuant to the 

emergency-aid exception to the warrant requirement, and defendant has failed to establish plain 

error. Carines, 460 Mich at 763. 

 Having established that the police officers’ warrantless entry of the residence was not 

unlawful, the next step of analysis is to address whether there was sufficient evidence to support 

defendant’s convictions. 

 The crime of assaulting, resisting, or obstructing a police officer, is defined in MCL 

750.81d(1), which provides in relevant part that 

an individual who assaults, batters, wounds, resists, obstructs, opposes, or 

endangers a person who the individual knows or has reason to know is performing 

his or her duties is guilty of a felony punishable by imprisonment for not more 

than 2 years or a fine of not more than $2,000.00, or both. 

“ ‘Obstruct’ includes the use or threatened use of physical interference or force or a knowing 

failure to comply with a lawful command.” MCL 750.81d(7)(a). “ ‘Person’ means . . . [a] 

police officer of this state or of a political subdivision of this state . . . .” MCL 750.81d(7)(b)(i). 

 There are three elements that the prosecution must establish in order to convict a 

defendant of violating MCL 750.81d(1): (1) “the defendant assaulted, battered, wounded, 

resisted, obstructed, opposed, or endangered a police officer,” (2) “the defendant knew or had 

reason to know that the person that the defendant assaulted, battered, wounded, resisted, 

obstructed, opposed, or endangered was a police officer performing his or her duties,” and (3) 

“the officers acted lawfully.” People v Quinn, 305 Mich App 484, 491, 492; 853 NW2d 383 

(2014) (quotation marks and citation omitted). 

 Defendant does not challenge the first two elements, but only argues that the police 

officers were acting unlawfully by entering the residence without a warrant, giving defendant the 

right to resist the officers’ entry and any related search. The Michigan Supreme Court has held 
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that “the right to resist unlawful arrests, and other unlawful invasions of private rights, is well 

established in our state’s common law,” and that this right was not abrogated by the Legislature’s 

enactment of MCL 750.81d. People v Moreno, 491 Mich 38, 40, 42-43, 46-47, 58; 814 NW2d 

624 (2012). In Moreno, our Supreme Court remanded the defendant’s case to the trial court with 

instructions to grant the defendant’s motion to quash the charge of resisting and obstructing a 

police officer under MCL 750.81d where the defendant affirmatively refused to allow police to 

enter his home without first obtaining a warrant, a physical struggle then occurred between the 

defendant and the police officers before the defendant was physically subdued and arrested, and 

the trial court found that there were no exigent circumstances that would have served as an 

exception to the warrant requirement. Id. at 43-44, 58. 

 Unlike the situation in Moreno, there was no unconstitutional entry or unlawful police 

conduct for defendant in the instant case to resist. As previously discussed, defendant’s 

constitutional right to be free from unreasonable searches and seizures was not violated based on 

the police officers’ entry into the residence. Defendant did not have a reasonable expectation of 

privacy in the residence, and even if she did, the officers’ entry was justified under the 

emergency-aid exception to the warrant requirement. Viewing the evidence in a light most 

favorable to the prosecution, a rational jury could find beyond a reasonable doubt that the police 

officers acted lawfully and that the prosecution established all of the necessary elements to 

convict defendant of assaulting, resisting, or obstructing a police officer. Wolfe, 440 Mich at 

515; Quinn, 305 Mich App at 491. 

 Next, the crime of felonious assault is defined in MCL 750.82, which provides in relevant 

part: 

[A] person who assaults another person with a gun, revolver, pistol, knife, iron 

bar, club, brass knuckles, or other dangerous weapon without intending to commit 

murder or to inflict great bodily harm less than murder is guilty of a felony 

punishable by imprisonment for not more than 4 years or a fine of not more than 

$2,000.00, or both. 

 “The elements of felonious assault are (1) an assault, (2) with a dangerous weapon, and 

(3) with the intent to injure or place the victim in reasonable apprehension of an immediate 

battery.” People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). “[A] simple criminal 

assault is made out from either an attempt to commit a battery or an unlawful act which places 

another in reasonable apprehension of receiving an immediate battery . . . .” People v Johnson, 

407 Mich 196, 210; 284 NW2d 718 (1979) (quotation marks and citation omitted). “Battery has 

been defined as an intentional, unconsented and harmful or offensive touching of the person of 

another, or of something closely connected with the person.” People v Starks, 473 Mich 227, 

234; 701 NW2d 136 (2005) (quotation marks and citation omitted). The term “other dangerous 

weapon” serves to include an object that might not traditionally be considered a weapon if that 

object is used as a dangerous weapon in the assault, as the Michigan Supreme Court has 

explained with respect to the felonious assault statute: 

Some weapons carry their dangerous character because so designed and are, when 

employed, per se, deadly, while other instrumentalities are not dangerous 
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weapons unless turned to such purpose. The test as to the latter is whether the 

instrumentality was used as a weapon and, when so employed in an assault, 

dangerous. The character of a dangerous weapon attaches by adoption when the 

instrumentality is applied to use against another in furtherance of an assault. 

When the purpose is evidenced by act, and the instrumentality is adapted to 

accomplishment of the assault and capable of inflicting serious injury, then it is, 

when so employed, a dangerous weapon. [People v Goolsby, 284 Mich 375, 378; 

279 NW 867 (1938).] 

Finally, “because it can be difficult to prove a defendant’s state of mind on issues such as 

knowledge and intent, minimal circumstantial evidence will suffice to establish the defendant’s 

state of mind, which can be inferred from all the evidence presented.” People v Kanaan, 278 

Mich App 594, 622; 751 NW2d 57 (2008). 

 Here, defendant does not make any specific arguments with respect to her felonious 

assault conviction, but we find that the evidence was nonetheless sufficient to support it. The 

jury could have reasonably found that defendant attempted to commit a battery against Officer 

Anderson by swinging the lamp at him and actually committed a battery when she hit him with 

the lamp, satisfying the first element of felonious assault. See Johnson, 407 Mich at 210; Starks, 

473 Mich at 234; Avant, 235 Mich App at 505. The jury could have also reasonably found that 

the lamp was a dangerous weapon because defendant used it as a means to accomplish the 

assault and attempt to inflict injury on Officer Anderson, and the heavy glass or ceramic lamp 

was “capable of inflicting serious injury” when swung at a person like a baseball bat. See 

Goolsby, 284 Mich at 377; Avant, 235 Mich App at 505. Finally, the jury could have reasonably

inferred from defendant’s statements indicating that she wanted to fight with the police officers, 

along with the way that she used the lamp against Officer Anderson, that she intended to injure 

Officer Anderson or place him in reasonable fear of an immediate battery. Kanaan, 278 Mich 

App at 622; Avant, 235 Mich App at 505. Thus, viewing the evidence in a light most favorable 

to the prosecution, a rational jury could have found defendant guilty beyond a reasonable doubt 

of felonious assault. See Wolfe, 440 Mich at 515. 

III. DEFENDANT’S RIGHT TO PRESENT A DEFENSE 

 Next, defendant argues that she was denied her right to present a defense because Jolene 

was not permitted to testify as a res gestae witness. We disagree. 

 “[W]hether a defendant’s right to present a defense was violated by the exclusion of 

evidence is a constitutional question that this Court reviews de novo.” People v Steanhouse, 313 

Mich App 1, 17; 880 NW2d 297 (2015) (citation omitted). Unpreserved constitutional claims 

are reviewed on appeal for plain error affecting substantial rights. People v King, 297 Mich App 

465, 472; 824 NW2d 258 (2012). A trial court’s decision to permit witnesses to be added to or 

deleted from the witness list is ordinarily reviewed for an abuse of discretion. People v Burwick, 

450 Mich 281, 291; 537 NW2d 813 (1995). Unpreserved issues involving the failure to produce 

a res gestae witness are reviewed for plain error affecting substantial rights. Steanhouse, 313 

Mich App at 14. However, when a defendant waives, rather than forfeits, his rights, “there is no 

‘error’ to review.” People v Carter, 462 Mich 206, 219; 612 NW2d 144 (2000). 
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 “A criminal defendant has a right to present a defense under our state and federal 

constitutions.” People v Anstey, 476 Mich 436, 460; 719 NW2d 579 (2006). However, “this 

right is not unlimited and is subject to reasonable restrictions.” King, 297 Mich App at 473. 

“The accused must still comply with established rules of procedure and evidence designed to 

assure both fairness and reliability in the ascertainment of guilt and innocence.” Steanhouse, 313 

Mich App at 20 (quotation marks and citation omitted). 

 A res gestae witness is a person who “witnesse[d] some event in the continuum of the 

criminal transaction” and who could provide testimony that would “aid[] in developing a full 

disclosure of the facts at trial.” People v Long, 246 Mich App 582, 585; 633 NW2d 843 (2001). 

The prosecution’s obligations with respect to res gestae witnesses are governed by MCL 

767.40a, which provides: 

 (1) The prosecuting attorney shall attach to the filed information a list of 

all witnesses known to the prosecuting attorney who might be called at trial and 

all res gestae witnesses known to the prosecuting attorney or investigating law 

enforcement officers. 

 (2) The prosecuting attorney shall be under a continuing duty to disclose 

the names of any further res gestae witnesses as they become known. 

 (3) Not less than 30 days before the trial, the prosecuting attorney shall 

send to the defendant or his or her attorney a list of the witnesses the prosecuting 

attorney intends to produce at trial. 

 (4) The prosecuting attorney may add or delete from the list of witnesses 

he or she intends to call at trial at any time upon leave of the court and for good 

cause shown or by stipulation of the parties. 

 (5) The prosecuting attorney or investigative law enforcement agency 

shall provide to the defendant, or defense counsel, upon request, reasonable 

assistance, including investigative assistance, as may be necessary to locate and 

serve process upon a witness. The request for assistance shall be made in writing 

by defendant or defense counsel not less than 10 days before the trial of the case 

or at such other time as the court directs. If the prosecuting attorney objects to a 

request by the defendant on the grounds that it is unreasonable, the prosecuting 

attorney shall file a pretrial motion before the court to hold a hearing to determine 

the reasonableness of the request. 

 (6) Any party may within the discretion of the court impeach or crossexamine any witnesses as though the witness had been called by another party. 

 The pre-1986 version of the statute “plainly imposed on a prosecutor the duty to list all 

res gestae witnesses on the information and to produce them at trial.” People v Perez, 469 Mich 

415, 418; 670 NW2d 655 (2003). However, when the statute was amended in 1986, “the 

Legislature replaced the prosecutor’s duty to produce res gestae witnesses with an obligation to 

provide notice of known witnesses and reasonable assistance to locate witnesses on defendant’s 
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request.” Id. at 418-419 (quotation marks and citation omitted). Thus, under the current version 

of the statute “the prosecutor will give advance notice of all known res gestae witnesses and 

specify before trial which known witnesses it intends to call,” and, having been advised of that 

information, “the defense determines which known witnesses the prosecutor will not call.” 

Burwick, 450 Mich at 290-291. “[U]pon request, the government must provide reasonable 

assistance ‘as may be necessary to locate and serve process . . . .’ ” Id. at 291, quoting MCL 

767.40a(5) (last alteration in the original). “Having thus fully addressed all known witnesses and 

provided for notice of their existence and a designation of who will be produced, the statute 

contemplates that the defense will seek production of the witnesses it desires and allows the 

prosecutor to delete from or add to the list of witnesses it will produce ‘at any time’ as long as 

the good-cause requirement of MCL 767.40a(1) is satisfied.” Id. “Endorsement or deletion from 

this list is within the discretion of the trial court, reversible only for abuse.” Id. Furthermore, 

MCR 6.416 provides that “[s]ubject to the rules in this chapter and to the Michigan rules of 

evidence, each party has discretion in deciding what witnesses and evidence to present.” See 

also Burwick, 450 Mich at 291 n 13 (“The commentary [to MCR 6.416] explicitly recognizes 

that each party has discretion in deciding what witnesses and evidence to present.”). 

 In the instant case, there does not appear to be any dispute that Jolene was a res gestae 

witness. Long, 246 Mich App at 585. It also appears that the prosecution complied with its 

statutory obligations of providing notice that Jolene was a res gestae witness. See MCL 

767.40a(1); Burwick, 450 Mich at 290-291. Moreover, defendant was clearly aware of Jolene’s 

existence because Jolene was defendant’s mother, defense counsel indicated that she made 

multiple attempts to contact Jolene based on defendant’s request that she testify at trial, and 

defendant apparently was able to procure Jolene’s presence at trial by contacting her during a 

break in the trial. The prosecution was not required to call Jolene as a witness at trial. Perez, 

469 Mich at 418-419. Indeed, defendant does not argue on appeal that the prosecution failed to 

comply with its obligations regarding res gestae witnesses, and defendant does not otherwise 

allege any wrongdoing by the prosecution. 

 Rather, defense counsel expressly declined to call Jolene as a witness, waiving this right. 

“Waiver has been defined as the intentional relinquishment or abandonment of a known right.” 

Carter, 462 Mich at 215 (quotation marks and citation omitted). “One who waives his rights 

under a rule may not then seek appellate review of a claimed deprivation of those rights, for his 

waiver has extinguished any error.” Id. at 215, 219 (quotation marks and citation omitted) 

(holding that an effective waiver occurred when “counsel clearly expressed satisfaction with the 

trial court’s decision”). “[W]hile the defendant must personally make an informed waiver for 

certain fundamental rights such as the right to counsel or the right to plead not guilty, for other 

rights, waiver may be effected by action of counsel.” People v Buie, 491 Mich 294, 305; 817 

NW2d 33 (2012) (quotation marks and citation omitted). Specifically, waiver may be 

accomplished through defense counsel when the matter at issue is one of trial strategy. Carter, 

462 Mich at 218-219 (“Because counsel has full authority to manage the conduct of the trial and 

to decide matters of trial strategy, we conclude that in this instance, waiver could be effected by 

the action of defense counsel.”). “Decisions regarding what evidence to present and whether to 

call or question witnesses are presumed to be matters of trial strategy.” People v Rockey, 237 

Mich App 74, 76; 601 NW2d 887 (1999). 
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 Here, defense counsel indicated that she did not wish to call Jolene as a witness because 

she had not been able to interview Jolene before trial. Defense counsel indicated to the trial 

court that it was not her practice to call witnesses at trial without first finding out what they 

would say. Defense counsel reported that she had attempted to contact Jolene in July—months 

before defendant’s October trial—and that Jolene had not responded. Defense counsel attempted 

to contact Jolene by mail and by telephone, and despite defendant’s awareness that Jolene had 

not replied and that the telephone number that defense counsel had for Jolene was invalid, 

defendant did not provide defense counsel with any further information. Defense counsel’s 

decision not to call Jolene to testify clearly represents a strategic judgment about whether 

specific witnesses will be presented. See Rockey, 237 Mich App at 76. Defense counsel’s 

unequivocal indication that she did not wish to call Jolene was an intentional relinquishment of 

any right to call Jolene as a res gestae witness, and thus functioned as a waiver of that right. See 

Carter, 462 Mich at 215. As a matter of trial strategy, this waiver could be made through 

defense counsel. See id. at 218-219; cf. also Buie, 491 Mich at 315, 318, quoting Carter, 462 

Mich at 215 (holding that “if the decision constitutes reasonable trial strategy, which is 

presumed, the right of confrontation may be waived by defense counsel as long as the defendant 

does not object on the record” and that the defendant, “through his counsel, waived his right of 

confrontation and ‘extinguished any error’ that may have been committed”). 

 Because the trial court complied with defense counsel’s request and thus did not prevent 

defendant from calling a witness, defendant cannot now claim that the trial court erred in this 

respect and denied her right to present a defense; defendant’s waiver “extinguished any error.” 

Carter, 462 Mich at 215. Defendant’s argument is really more of a claim that defense counsel’s 

decision constituted ineffective assistance, and that argument is addressed below. 

IV. DEFENDANT’S RIGHT TO TESTIFY 

 Next, defendant argues that she was prevented from testifying on her own behalf at trial 

because there was no record to show that defendant was advised by defense counsel about this 

right, and no record was made to show that defendant actually made the decision not to testify. 

We disagree. 

 “This Court reviews de novo whether defendant suffered a deprivation of his 

constitutional right to present a defense,” People v Steele, 283 Mich App 472, 480; 769 NW2d 

256 (2009), and “reviews unpreserved claims of constitutional error under the plain-error 

standard,” People v Bonilla-Machado, 489 Mich 412, 419; 803 NW2d 217 (2011). 

 “A defendant’s right to testify in his own defense arises from the Fifth, Sixth, and 

Fourteenth Amendments of the United States Constitution.” Id. “Although counsel must advise 

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

defendant.” Id. at 419, 421 (holding that there was no error requiring reversal where the 

defendant “expressly acknowledged on the record that he understood it was his choice whether to 

testify and that he understood that anything he testified to could be used against him”). “[T]here 

is no requirement in Michigan that there be an on-the-record waiver of a defendant’s right to 

testify.” People v Harris, 190 Mich App 652, 661; 476 NW2d 767 (1991); see also People v 

Simmons, 140 Mich App 681, 684; 364 NW2d 783 (1985) (“We agree with the majority of 

courts which have addressed this issue and decline to require an on-the-record waiver of 
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defendant’s right to testify.”). “If the accused expresses a wish to testify at trial, the trial court 

must grant the request, even over counsel’s objection.” Simmons, 140 Mich App at 685. 

However, if a defendant “decides not to testify or acquiesces in his attorney’s decision that he 

not testify, the right will be deemed waived.” Id. (quotation marks and citation omitted). 

 In the instant case, defendant’s contention that no record was made to show that 

defendant was advised by defense counsel about her right to testify or that defendant actually 

made the decision not to testify, is inaccurate. Defendant did in fact make such a waiver on the 

record. However, because there is no requirement that a waiver of a defendant’s right to testify 

be placed on the record, defendant’s argument is without merit nonetheless. Harris, 190 Mich 

App at 661-662; Simmons, 140 Mich App at 685. Moreover, defendant indicated on the record 

that she discussed her case with defense counsel, including whether she should testify, and that 

she had made the decision not to testify based on defense counsel’s advice. Defendant never 

indicated a desire to testify at trial, and she does not claim on appeal that she wanted to testify. 

Defendant’s statements on the record demonstrate her affirmative indication that she made the 

decision not to testify. See Bonilla-Machado, 489 Mich at 421. Thus, defendant was not 

improperly denied her right to testify at trial. Simmons, 140 Mich App at 685. Defendant has 

therefore failed to establish plain error. See Carines, 460 Mich at 763. 

V. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Last, defendant argues that she received ineffective assistance of counsel on two grounds. 

We disagree with both. 

 “Unpreserved issues concerning ineffective assistance of counsel are reviewed for errors 

apparent on the record.” People v Lockett, 295 Mich App 165, 186; 814 NW2d 295 (2012). “A 

claim of ineffective assistance of counsel presents a mixed question of fact and constitutional 

law.” People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008). Factual findings are 

reviewed for clear error, and questions of constitutional law are reviewed de novo. Id. 

 There are “two components” to establishing an ineffective-assistance-of-counsel claim 

requiring reversal: the defendant must show first, “that counsel’s performance was deficient,” 

and second, that “the deficient performance prejudiced the defense.” Strickland v Washington, 

466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). In other words, the defendant must 

establish (1) “that counsel’s performance was below an objective standard of reasonableness 

under prevailing professional norms,” and (2) “that there is a reasonable probability that, but for 

counsel’s error, the result of the proceeding would have been different.” People v Stanaway, 446 

Mich 643, 687-688; 521 NW2d 557 (1994). “Effective assistance of counsel is presumed,” and 

“[t]he defendant bears a heavy burden of proving otherwise.” Rockey, 237 Mich App at 76. 

“The defendant must overcome a strong presumption that counsel’s assistance constituted sound 

trial strategy.” Stanaway, 446 Mich at 687. “This Court will not second-guess counsel on 

matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” 

People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015) (quotation marks and citation 

omitted). “Failure to make the required showing of either deficient performance or sufficient 

prejudice defeats the ineffectiveness claim.” Strickland, 466 US at 700. 
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 Here, defendant first argues that defense counsel was ineffective for failing to call Jolene 

as a res gestae witness. “Decisions regarding what evidence to present and whether to call or 

question witnesses are presumed to be matters of trial strategy.” Rockey, 237 Mich App at 76. 

“[T]he failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the 

defendant of a substantial defense.” People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 

(2004). “A substantial defense is one that could have affected the outcome of the trial.” Putman, 

309 Mich App at 248. 

 As stated earlier, defense counsel made multiple attempts to contact Jolene by letter and 

by phone up until the day before trial, and received no response. Defendant was aware of her 

counsel’s inability to make contact, and despite Jolene being defendant’s mother, defendant did 

not provide defense counsel with any further contact information for Jolene. Yet, defendant had 

the ability to contact and procure Jolene’s presence at the trial by making a telephone call during 

a break. Defense counsel indicated that she does not call witnesses to testify who have not been 

interviewed by her before trial because she does not otherwise know what the witnesses will say 

or whether their information is relevant. 

 Defense counsel employed a sound strategic practice because to do otherwise would 

invite the possibility of unexpectedly presenting damaging information to the jury. See People v 

Gioglio (On Remand), 296 Mich App 12, 22-23; 815 NW2d 589 (2012), vacated in part on other 

grounds and lv den sub nom People v Gioglio, 493 Mich 864 (2012) (When considering an 

ineffective assistance of counsel claim, “a reviewing court must conclude that the act or omission 

of the defendant’s trial counsel fell within the range of reasonable professional conduct if, after 

affirmatively entertaining the range of possible reasons for the act or omission under the facts 

known to the reviewing court, there might have been a legitimate strategic reason for the act or 

omission.”). It appears that defense counsel took reasonable steps to investigate whether Jolene 

should be called as a witness, and defendant could have facilitated their meeting, but chose 

otherwise. Defendant clearly was able to contact Jolene at will. Furthermore and contrary to 

defendant’s argument, it appears that defense counsel’s statement that “[a]ccording to the police 

report, no one else was present in the home” was made in reference to the “other” unnamed 

surprise witnesses that defendant wished to call to testify, rather than in reference to Jolene. The 

testimony at trial indicated that defendant, Turquoise, Jolene, Officer Anderson, and Officer 

Stoddard were the only people at the scene. In other words, defense counsel’s decision does not 

appear to have been made based on inaccurate facts. Defendant has therefore failed to show that 

defense counsel performed below an objective standard of reasonableness. Stanaway, 446 Mich 

at 687. 

 Furthermore, defendant has not attempted to explain what testimony Jolene would have 

provided or how it would have helped her defense. Thus, defendant has not established that she 

was deprived of a substantial defense and therefore, that defense counsel was ineffective. Dixon, 

263 Mich App at 398. Defendant has also failed to show a reasonable probability that but for the 

failure to call Jolene as a witness, the outcome of the trial would have been different, Stanaway, 

446 Mich at 687-688. 

 Consequently, defendant has not established that she was denied the effective assistance 

of counsel on this ground. Strickland, 466 US at 700; see also Avant, 235 Mich App at 508 

(holding that defendant failed to show that he received ineffective assistance of counsel based on 
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the failure to call a specific witness at trial where the record was “silent” regarding what 

testimony the witness would have given). 

 Defendant also argues that defense counsel was ineffective for preventing her from 

testifying in her own defense. “[A]n accused’s decision to testify or not to testify is a strategic 

decision best left to an accused and his counsel.” People v Martin, 150 Mich App 630, 640; 389 

NW2d 713 (1986). “This Court will not substitute its judgment for that of counsel regarding 

matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” 

Rockey, 237 Mich App at 76-77. 

 As discussed earlier, contrary to defendant’s argument, defendant affirmatively indicated 

on the record that she had made the decision not to testify. Defendant’s decision was placed on 

the record, even though there is no requirement in Michigan that a waiver of the right to testify 

be placed on the record. Harris, 190 Mich App at 661. Defendant’s decision was a strategic one 

for her to make with the advice of defense counsel. Martin, 150 Mich App at 640. This decision 

will not be second-guessed on appeal. Putman, 309 Mich App at 248; Rockey, 237 Mich App at 

76-77. Defendant does not claim that defense counsel failed to advise her about her right to 

testify or her ultimate decision with respect to this right. Rather, defendant indicated on the 

record at trial that such a conversion actually occurred. Defendant has not put forth any evidence 

to suggest that it was not sound trial strategy for her to refrain from testifying at trial, and 

defendant has failed to show that defense counsel performed below an objective standard of 

reasonableness in this respect. Stanaway, 446 Mich at 687. Defendant does not claim that she 

wanted to testify at trial, and she also has not given any indication of what her testimony would 

have been or how her testimony would have impacted the outcome of the trial. Thus, she has not 

established that she was deprived of a substantial defense or that defense counsel was ineffective. 

Dixon, 263 Mich App at 398. Similarly, defendant has not demonstrated a reasonable 

probability that the result of the trial would have been different but for the lack of her testimony. 

Stanaway, 446 Mich at 687-688. 

 Consequently, defendant has failed to show that she was denied the effective assistance 

of counsel on this ground. See Simmons, 140 Mich App at 682, 685-686 (holding that defense 

counsel was not ineffective for allegedly failing to inform the defendant of his right to testify 

where the defendant did not testify at trial, did not allege that he did not know that he had a right 

to testify, did not allege that he would have testified at trial, and did not indicate what his 

testimony would have been had he testified). 

 Affirmed. 

/s/ Cynthia Diane Stephens 

/s/ Douglas B. Shapiro 

/s/ Michael F. Gadola