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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

July 14, 2016 

v No. 325110 

Wayne Circuit Court 

SHAQUILLE DAI-SH GANDY-JOHNSON, LC No. 14-007173-FH 

 Defendant-Appellant. 

Before: RIORDAN, P.J., and SAAD and M. J. KELLY, JJ. 

PER CURIAM. 

 Defendant appeals his jury trial convictions of two counts of third-degree criminal sexual 

conduct (force or coercion to accomplish sexual penetration) (CSC-III), MCL 750.520d(1)(b). 

Because the prosecutor’s comments during closing argument impermissibly shifted the burden of 

proof to defendant, thereby denying him a fair trial, we reverse and remand for a new trial. 

 This case arises from an alleged sexual assault. The prosecution’s primary witness was 

the victim, JH, who testified that after she met up with defendant and his friend, Brandon 

Thompson, they all went back to an apartment on West Chicago. JH testified that after 

Thompson left the room, she and defendant began to kiss. But shortly thereafter, defendant 

became demanding and took JH’s pants off against her will and forced her into having sex. 

Defendant did not testify and did not present any evidence. 

I. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant argues that defense counsel rendered ineffective assistance when he failed to 

request the jury instruction for a missing witness. Specifically, defendant claims that his trial 

counsel should have requested the CJI2d 5.121

 instruction, which would have informed the jury 

that it could have inferred that the witness, Thompson, who did not testify at trial, would have 

testified unfavorably for the prosecution. We disagree. 

 

1

 CJI2d 5.12 specifically states that “_____ is a missing witness whose appearance was the 

responsibility of the prosecution. You may infer that this witness’s testimony would have been 

unfavorable to the prosecution’s case.” 
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 Claims of ineffective assistance of counsel are mixed questions of law and fact. People v 

Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). This Court reviews a trial court’s 

findings of fact for clear error and reviews questions of constitutional law de novo. Id. The 

defendant must establish a factual predicate for the ineffective assistance of counsel claim. 

People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Because no evidentiary hearing was held, 

our review is for errors apparent from the record. People v Horn, 279 Mich App 31, 38; 755 

NW2d 212 (2008). 

 To evaluate a claim of ineffective assistance of counsel, this Court uses the standard 

established in Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 

(1984). Hoag, 460 Mich at 5-6, citing People v Pickens, 446 Mich 298; 521 NW2d 797 (1994). 

For a successful claim of ineffective assistance of counsel, the defendant must show that “(1) 

counsel’s performance fell below an objective standard of reasonableness and (2) but for 

counsel’s deficient performance, there is a reasonable probability that the outcome would have 

been different.” Trakhtenberg, 493 Mich at 51. The effective assistance of counsel is presumed. 

People v Roscoe, 303 Mich App 633, 644; 846 NW2d 402 (2014). Further, the defendant must 

overcome the presumption that defense counsel’s alleged actions were simply sound trial 

strategy. Trakhtenberg, 493 Mich at 52. “[T]his Court will not second-guess counsel regarding 

matters of trial strategy, and even if defense counsel was ultimately mistaken, this Court will not 

assess counsel’s competence with the benefit of hindsight.” People v Rice (On Remand), 235 

Mich App 429, 445; 597 NW2d 843 (1999). 

 Pursuant to MCL 767.40a(1), the prosecutor “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.” MCL 

767.40a(3) further provides that “[n]ot 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.” “Once a witness is endorsed under MCL 767.40a(3), the prosecution 

must use due diligence to produce the witness.” People v Duenaz, 306 Mich App 85, 104; 854 

NW2d 531 (2014), citing People v Eccles, 260 Mich App 379, 388; 677 NW2d 76 (2004). If the 

trial court determines that the prosecutor failed to exercise due diligence to produce an endorsed 

witness, “the jury should be instructed that it may infer that the missing witness’s testimony 

would have been unfavorable to the prosecution’s case.” Eccles, 260 Mich App at 388-389, 

citing CJI2d 5.12. 

 Defendant’s claim that his trial counsel was ineffective when he did not request the CJI2d 

5.12 instruction must fail because such a request would have been futile, as the prosecution never 

actually endorsed Thompson on its witness list. On the sole prosecution witness list included in 

the lower court file, Thompson is indeed listed as a potential witness in the case, but he was not 

denoted as an endorsed witness that the prosecution intended to produce at trial. The witness list 

states, “The witnesses the People intend to produce at trial, pursuant to MCLA 767.40a(3), are 

designated by an ‘X’ in the boxes to the left.” But on the sheet, there is no mark next to 
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Thompson’s name.2

 Thus, without Thompson being an endorsed witness, the prosecution’s 

failure to produce him at trial is not a ground for providing the jury with the CJI2d 5.12 

instruction. Consequently, any request for a missing witness instruction due to the prosecution’s 

failure to produce a witness that it endorsed under MCL 767.40a(3) would have been futile, and 

counsel is not ineffective for failing to raise a futile objection or make a futile request. See Horn, 

279 Mich App at 42 n 5; People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998). 

II. PROSECUTORIAL MISCONDUCT 

 Defendant argues that the prosecutor committed error by making comments in her closing 

argument that impermissibly shifted the burden of proof to him. We agree. 

 “[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and 

impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). This Court 

“consider[s] issues of prosecutorial misconduct on a case-by-case basis by examining the record 

and evaluating the remarks in context, and in light of defendant’s arguments.” People v Thomas, 

260 Mich App 450, 454; 678 NW2d 631 (2004). 

 “A prosecutor may not imply in closing argument that the defendant must prove 

something or present a reasonable explanation for damaging evidence because such an argument 

tends to shift the burden of proof.” People v Fyda, 288 Mich App 446, 463-464; 793 NW2d 712 

(2010). Further, “a prosecutor may not comment on the defendant’s failure to present evidence 

because it is an attempt to shift the burden of proof.” Id. at 464, citing People v Abraham, 256 

Mich App 265, 273; 662 NW2d 836 (2003). Additionally, while prosecutors may “argue the 

evidence and all reasonable inferences from the evidence as it relates to their theory of the case,” 

“[a] prosecutor may not make a statement of fact to the jury that is not supported by evidence 

presented at trial and may not argue the effect of testimony that was not entered into evidence.” 

People v Unger, 278 Mich App 210, 236, 241; 749 NW2d 272 (2008). 

 Defendant claims that the prosecutor impermissibly shifted the burden of proof to 

defendant when she made the following statements during her closing argument: 

 Now, officer [Beckem] got up on the stand and told you that they looked 

for [Thompson]. We wanted to get a statement from [Thompson] but [he] is no 

where to be found. 

 

2

 To be clear, this was not an instance where the prosecution simply forgot to mark any of its 

witnesses. Indeed, of the ten entries on the list, only five of them were marked as being intended 

to be produced pursuant to MCL 767.40a(3). If such a list had lacked any such marks, then that 

possibly would present a different question because, in that scenario, defense counsel may have 

reasonably assumed that all of the witnesses were intended to be endorsed under MCL 

767.40a(3), despite the lack of any marks. But we need not offer any opinion on that scenario. 
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 Now you can make inferences and the Judge will tell you that there is 

inferences that can be made. [Thompson] is the only person that could say she is 

a liar. If he’s [sic] so chose. 

 He’s the only one [who] could say there’s an independent witness. 

She . . . totally made that up story. She was fine. I came out that room[,] I took 

her home[,] and she was laughing and talking[.] [T]here was no crying[;] there 

was nothing wrong and she went home. 

 [Thompson] could potentially exonerate this defendant. 

At this point, defense counsel objected because he thought that the prosecutor was attempting to 

shift the burden of proof to defendant for him “to prove something,” and the prosecutor replied, 

“It’s not shifting the burden[.] I’m talking about [Thompson.] I’m not talking about the 

defendant.” After which, the trial court simply stated, “All right. Continue.” The proceeding 

continued, as follows: 

[Prosecutor]: But [Thompson] does not do that. [Thompson] leaves his friend 

out to dry, why? Because [Thompson] probably knows that she was upset and 

she was crying when he saw her. 

 Now you think about that. 

[Defense Counsel]: Your Honor, this all assumes facts that are not in evidence. 

Brandon has not testified here. 

[Prosecutor]: This is argument. 

[Defense Counsel]: Pure speculation. 

[Prosecutor]: It’s argument. 

THE COURT: Continue. 

 We agree with defendant that the prosecutor impermissibly attempted to shift the burden 

of proof to the defense. The clear implication from the prosecutor’s statement is that 

Thompson’s failure to testify was significant because if he could have contradicted the victim’s 

testimony, then the defense would have called him to testify at trial. In other words, according to 

the prosecutor’s argument, the defense’s failure to produce evidence—i.e., the witness 

Thompson—can and should be viewed as proof that he committed the crime. The prosecutor’s 

attempt to frame her comments as being directed at Thompson himself, instead of defendant, is 

unavailing. Obviously, Thompson cannot personally inject himself into the proceeding; one 

party must call him as a witness. And because the prosecutor was unable to locate Thompson 

and did not call him to testify, it unavoidably would fall to the defense to call Thompson as a 

witness. Thus, any comment about the failure of Thompson to testify necessarily implies that 
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defendant should have presented him as a witness, which qualifies as a comment regarding 

defendant’s failure to present evidence. See Fyda, 288 Mich App at 464, Abraham, 256 Mich 

App at 273. Such a comment is not allowed, as it attempts to shift the burden of proof.3

 Further, we do not believe that the court’s instruction to the jury that the attorney’s 

comments were not evidence were able to cure this defect. Notably, when defense counsel 

objected to the prosecutor’s comments, the trial court merely instructed the prosecutor to 

continue. Thus, the clear impression the court gave was that the argument presented by the 

prosecutor was indeed permissible and that the jury was allowed to infer that Thompson’s failure 

to testify could be viewed against defendant. As such, the later instruction that counsel’s 

comments were only to be considered as argument and not as evidence does nothing address the 

harm that the comment caused. 

 Because there was virtually no corroborating physical evidence to support the rape 

allegations, the case essentially came down to whether the jury found JH credible. And because 

the prosecutor was allowed to argue that the jury could infer that JH was credible from the 

defense’s failure to produce Thompson—coupled with the trial court’s implicit approval of such 

an inference—we cannot conclude that the error was harmless. In other words, because it is not 

clear beyond a reasonable doubt that this constitutional error was harmless, reversal for a new 

trial is warranted. See People v Shepherd, 472 Mich 343, 347; 697 NW2d 144 (2005) (“A 

constitutional error is harmless if it is clear beyond a reasonable doubt that a rational jury would 

have found the defendant guilty absent the error.”) (quotation marks, brackets, and citation 

omitted). 

 

3

 We note that the present situation is distinguishable from other situations, where it is 

permissible for the prosecutor to comment on the lack of a defense’s corroborating evidence. 

For instance, “when a defendant advances an alternate theory or alibi,” the prosecution may 

comment on the nonproduction of corroborating alibi witnesses. People v Fields, 450 Mich 94, 

112; 538 NW2d 356 (1995); see also People v Spivey, 202 Mich App 719, 351-352; 310 NW2d 

238 (1981) (“It is well settled that a prosecutor is permitted to comment on a defendant’s failure 

to produce ‘corroborating’ witnesses whenever the defendant takes the stand and testified on his 

own behalf.”) (emphasis added). 

 But in the present case, the defense presented no evidence. Simply put, the defense never 

made any claim to the jury that Thompson viewed the encounter between defendant and JH and 

could discount JH’s version of events. Instead, it was the prosecution’s witness JH who made 

the claim that Thompson was present and viewed, at least part of, the encounter. Thus, this 

situation is more akin to People v Shannon, 88 Mich App 138, 142; 276 NW2d 546 (1979), 

where the defendant did not testify at trial, and it was erroneous for the jury to consider that 

defendant failed to produce an alibi witness. As the Shannon Court stated, “At issue is the jury’s 

ability to draw an impermissible inference of guilt from defendant’s decision not to call [a] 

witness and its relation to his involvement in the charged crime. A jury is left with the 

impression that by defendant’s unsuccessful attempt to [produce the witness], guilt is rendered 

more presumable and apparent.” Id. Although Shannon dealt with the failure to call alibi 

witnesses, the underpinning of its holding nevertheless is applicable here. 
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III. RIGHT TO CONFRONTATION 

 Defendant argues that the trial court violated his Confrontation Clause rights by admitting 

into evidence JH’s sexual assault nurse examiner (SANE) report. We disagree. Defendant failed 

to raise a Confrontation Clause claim at the trial court. Accordingly, we review this unpreserved 

constitutional issue for plain error affecting defendant’s substantial rights. People v Putman, 309 

Mich App 240, 245-246; 870 NW2d 593 (2015). 

 Defendant is not entitled to a new trial based on his Confrontation Clause claim. He 

appears to conflate two potential Confrontation Clause issues. First, he argues that statements 

made by JH to the SANE, specifically that defendant threatened to get a gun during the assault, 

amounted to testimonial hearsay. Then, defendant asserts that, because the SANE report was 

admitted into evidence through Amanda Taylor, who did not examine JH or prepare the report, 

the court violated defendant’s Confrontation Clause rights. Specifically, he contends that 

defense counsel could not cross-examine the report’s author regarding whether JH’s lack of 

injuries, as stated in the report, called into question her story, or how any threat of a weapon 

could have been relevant to JH’s medical diagnosis. 

 The Sixth Amendment of the United States Constitution, as applied to the states through 

the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy 

the right . . . to be confronted with the witnesses against him.” US Const, Am VI; People v Buie, 

285 Mich App 401, 407-408; 775 NW2d 817 (2009). The Confrontation Clause applies not only 

to in-court testimony, but also to out-of-court statements introduced at trial. Crawford v 

Washington, 541 US 36, 50-51; 124 S Ct 1354; 158 L Ed 2d 177 (2004). Even then, only out-ofcourt statements that are testimonial implicate the Confrontation Clause. Id. at 50-52; People v 

Taylor, 482 Mich 368, 377; 759 NW2d 361 (2008). Furthermore, the Confrontation Clause bars 

the admission of these out-of-court testimonial statements only when the declarant is unavailable 

to testify and where defendant did not have a prior opportunity to cross-examine the declarant. 

Crawford, 541 US at 59, 68. 

 Here, we need not determine whether statements made by JH to the nurse and reflected in 

the SANE report amounted to testimonial hearsay because the declarant of those statements, JH, 

testified at trial and was available for cross-examination. “[W]hen the declarant appears for 

cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his 

prior testimonial statements.” Id. at 59 n 9. Accordingly, there can be no Confrontation Clause 

issue regarding any out-of-court statements JH made. 

 Defendant also appears to argue that the observations or conclusions made by the 

examining nurse and contained in the SANE report are testimonial. Thus, he claims that the 

court’s admission of the report violated his Confrontation Clause rights because he could not 

cross-examine the report’s author regarding the reliability of those observations and conclusions. 

Assuming without deciding that the author’s statements in the report were indeed testimonial 

because these out-of-court statements “would be available for use at a later trial,” Id. at 52; see 

also Davis v Washington, 547 US 813, 822; 126 S Ct 2266; 165 L Ed 2d 224 (2006); People v 

Garland, 286 Mich App 1, 10; 777 NW2d 732 (2009), defendant fails to show how this potential 

Confrontation Clause violation could have affected the outcome of trial. On the contrary, the 

conclusions and observations of the report appear to benefit defendant. While the prosecutor 
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relied on JH’s other admitted medical records that indicated that she suffered bruising on her 

wrist (to corroborate JH’s testimony that defendant constrained her during their encounter), 

Taylor testified that the SANE report noted that, after a thorough “head to toe” examination, JH 

exhibited “no injuries.” Thus, the observations in the SANE report did not tend to show that the 

sex between defendant and JH was forced or coerced, which was the dispositive question at trial. 

Therefore, to the extent that any of the nurse’s own observations and conclusions, as noted in the 

report, was testimonial and admitted in violation of the Confrontation Clause, defendant has 

failed to establish how any error affected his substantial rights.4

IV. SENTENCING 

 Defendant also raises several sentencing issues. However, because of our decision to 

remand for a new trial based on the prosecutor’s comments, these issues are moot, and we 

decline to address them. See People v Rutherford, 208 Mich App 198, 204; 526 NW2d 620 

(1994). 

 We reverse and remand for a new trial. We do not retain jurisdiction. 

/s/ Michael J. Riordan 

/s/ Henry William Saad 

/s/ Michael J. Kelly 

 

4

 Defendant again primarily relies on the statements in the report that defendant purportedly 

threatened JH that he was going to get a gun. But, as already discussed, the constitutional 

admissibility of those statements is dependent upon the JH’s availability to testify, not the nurse 

who simply scribed JH’s statements to the report.