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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 17, 2015

v No. 322427 Wayne Circuit Court ANTWAN LABRON CHASE, LC No. 11-010041-FC

Defendant-Appellant.

Before: J ANSEN , P.J., and M URPHY and R IORDAN , JJ.

P ER C URIAM

.

Defendant appeals as of right h is jury trial convictions of fi rst-degree murder, MCL 750.316, second-degree murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The tri al court sentenced defendant to life in prison without parole fo r the first-degree murder convi ction, 30 to 50 years’ imprisonment for the second-degree murder conviction, and two years’ impriso nment for the felony-firearm
conviction. We affirm.

Defendant argues that he is entitled to a new trial because he was deprived of his constitutional rightto the effective a ssistance of counsel. W e disagree.

Defendant failed to properly pr eserve the issue of ineffective assistance of counsel by filing a motion for a new trial or a Ginther 1 hearing in the trial court. People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008). This Court’s review of unpr eserved ineffective assistance of counsel claims is limited to mistakes apparent on the record

. People v Davis , 250 Mich App 357, 368; 649 NW2d 94 (2002). Further, a defendant has effecti vely waived the issue if the record does not support the defendant’s assignments of error. People v Sabin (On Second Remand) , 242 Mich App 656, 659; 620 NW2d 19 (2000). Whether a person has been denied effective assistance of counsel is a mixed question of law and fact. People v Matuszak , 263 Mich App 42, 48; 687 NW2d 342 (2004). “The trial court’s factu al findings are reviewed for clear error, while its constitutional determinations are review ed de novo.” Id

.

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-2- “Effective assistance of counsel is presumed, and a defendant bears a heavy burden to prove otherwise.” People v Swain , 288 Mich App 609, 643; 794 NW2d 92 (2010). This Court will not second-guess trial counsel’s strategic decisions, People v Henry , 239 Mich App 140, 149; 607 NW2d 767 (1999), and a defendant must overcome the str ong presumption that his counsel’s conduct represente d sound trial strategy, People v Douglas , 496 Mich 557, 585; 852 NW2d 587 (2014). For a new trial based on ineffective assistan ce of counsel, a defendant must show “(1) that defense counsel’s performance fell below an obje ctive standard of reasonableness under prevailing professional norms and (2) that defense counse l’s deficient performance so prejudiced the defendant that th ere is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” People v

Fonville , 291 Mich App 363, 382; 804 NW2d 878 (2011), citing Strickland v Washington , 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

Defendant first argues that his trial counsel’s failure to cal l a weapons expert to “properly” rebut the prosecutor’ s calculations regarding the nu mber of shots fired by defendant on the night of the incident in question constituted ineffectiv e assistance. Specifically, the prosecutor’s argument highlighted defendant’s own statements du ring cross-examination that he had fired only five shots in sel f-defense, that the handgun he used held only 11 bullets, and that he had never reloaded. The prosecutor then compared these clai ms with physical evidence that nine bullets were recovered from defendant’s handgun after the shooting. Defendant argues that
trial counsel should have known that the difference between the number of shots fired and the number of bullets in defendant’s gun would become a central iss ue related to defendant’s selfdefense theory, and should reasonably have called a weapons exp ert to testify with regard to the nature of guns, bullets , and magazines.

This argument fails at the outset because defendant has not ma de an offer of proof regarding the specific testimony a weapons expert could have of fered and how that testimony supported his self-defense theor y. Defendant cannot establish his claim of ineffective assistance of counsel by merely speculating that an expert could have testified favorably. See People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009). Here, defendant does not even speculate with regard to how a firearm expert’s testimony would be favorable to his defense and fails to address the fact that a weapons expert would likely pr ovide only cumulative information. Defendant testified that he was familiar with handguns and had been trained in the proper use of firearms by the Michigan State Police. He also testified, base d on direct knowledge, that his handgun, the one he admitted to using, held 11 bullets—10 in th e magazine and one in the chamber. Even without a weapons expert, the jury was provided with all relevant information regarding the actual weapon used during the shootings from its owner and user. Without even speculative evidence that additional information provided by a weapons expert would have aided his defense, defendant has failed to establish the necessary fa ctual predicate for his claim of
ineffective assistance of counsel. See People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001).

Additionally, defendant has failed to overcome the presumption that decisions regarding what evidence to present and whether to call or question witnes ses, including expert witnesses, are matters of trial strategy. See Davis , 250 Mich App at 368. Because the issue is unpreserved,
the Court’s determination of whether defendant has met the heav y burden required to overcome that presumption must be supported by facts apparent on the rec ord. See id . Here, the record-3- provides no proof that trial couns el failed to explore the pote ntial of expert testimony, as opposed to making the objectively reasonable strategic decision not to present it. Therefore, defendant has failed to overcome the presumption that his counsel employe d effective trial strategy. People v Ackerman , 257 Mich App 434, 455; 669 NW2d 818 (2003).

Finally, defendant has failed to establish the necessary preju dice because he cannot show that expert testimony regarding guns, bullets, and magazines wo uld have affected the outcome of his trial. Defendant’s ineffective assistance claim is predica ted on the assumption that the number of shots fired on the nig ht of the incident was crucial to defendant’s self-defense theory. Despite defendant’s assertion on appeal, the prosecutor did not argue that defendant’s act of reloading would negate his self-defense theory. It is clear fr om the record that the purpose of the prosecutor’s “murder math” argument was simply to call defendan t’s credibility into question. Indeed, the bulk of the prosecutor’s closing argument focused o n the testimony of three eyewitnesses, all of whom saw de fendant leaving the scene and r eturning to open fire on his victims. The prosecutor argued that, regardless of how many shot s were fired and by whom

, defendant’s claim that he was acting in self-defense failed bec ause, according to eyewitness testimony, defendant had been t he initial aggressor.

The viability of defendant’s sel f-defense theory rested not, t herefore, on how many shots defendant fired, but on the jurors’ determination of whether de fendant was telling the truth about being shot first. The jury does not require an expert to aid i n its assessment of witness credibility, and a weapons expert could not take defendant’s ow n conflicting statements and make them consistent. The jury heard defendant testify that he fired four shots inside the house and one inside his truck, that his gun held 11 total shots, and that he never reloaded his weapon. No expert testimony could counter the fact that 11 minus 5 equa ls 6, or refute the physical
evidence that more than six bul lets were found inside defendant ’s gun. Conflicts in the evidence are resolved by the jurors, who remain “free to believe or disb elieve, in whole or in part, any of the evidence presented.” People v Perry , 460 Mich 55, 63; 594 NW2d 477 (1999).

Defendant also argues that trial counsel was ineffective for f ailing to present expert medical testimony regarding defend ant’s mental state after bein g shot. Again, defendant has failed to offer proofs in the f orm of prospective testimony to overcome the strong presumption
that trial counsel’s decisions w ere not sound trial strategy. See Ackerman , 257 Mich App at 455. Defendant claims that a medical expert could have testified that “victims of shootings and other
traumatic events who suffer much blood loss cannot recreate wha t happened during the events with clarity.” But again, defendant fails to provide even a sp eculative argument with regard to how that testimony would have aided his defense, therefore fail ing to establish a factual predicate for his ineffective assistance claim. See Carbin , 463 Mich at 600. Additionally, defendant has offered no proof that trial counsel failed to exp lore the potential of medical expert testimony and simply made the strategic decision not to present it. Absent evidence regarding the extent of counsel’s pretrial investigation, defendant canno t overcome the strong presumption that trial counsel’s decision regarding expert testimony was a matter of trial strategy not to be second guessed by this Court. See Ackerman , 257 Mich App at 455.

Next, defendant argues that his trial counsel provided constit utionally deficient assistance when he “allowed the prosecutor to harass [defendant] in such a way that the jury did not fully appreciate the true situation,” which “was exceptionally danger ous and frightening.” Defendant-4- has not indicated which of the pr osecutor’s questions was impro per or designed to harass him. Indeed, apart from the one sentence argument quoted above, defe ndant has not provided a single record cite or any authori ty for this argument.

Without an offer of proof, defendant cannot overcome the stron g presumption that trial counsel’s decisions regarding when to object to the prosecutor’ s questions were strategic. See Douglas , 496 Mich at 585. Nor can he claim that he suffered prejudice despite the trial court’s explicit instruction to the jury that the prosecutor’s question s themselves were not evidence. See People v Messenger , 221 Mich App 171, 180; 561 NW2d 463 (1997) (holding that reve rsal was not required since the prosecuto r’s improper questioning was cu rable by a limiting instruction). “ ‘An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only curs ory treatment [of an issue] with little or no citation of supporting authority.’ ” People v Watson , 245 Mich App 572, 587; 629 NW2d 411 (2001) (citation omitted). Defendant has abandoned th is claim by failing to make a meaningful argument in s upport of his position. See id

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Additionally, we note that defe ndant was read his rights and e xpressed his acknowledgement after the trial judge specifically reminded him , “[I]f you choose to take the stand, . . . you will be subject to cross-examination by the [p ]rosecutor, in front of the jury.” Defendant was properly informed of his right not to testify, an d cannot now argue that he was prejudiced by his own inf ormed and voluntary decision.

Finally, defendant argues that trial counsel’s failure to unde rstand MRE 404(b) and MRE 405, which require the use of opinion evidence over specific ac ts to establish a victim’s propensity for violence, constitu ted ineffective assistance. S pecifically, defendant argues that trial counsel’s decision to seek admission of evidence regardin g specific acts of violence perpetrated by the victims, rathe r than calling individuals to testify with regard to the victims’ reputation for violence, fell be low an objective standard of re asonableness.

First, it should be noted that defendant has failed to establi sh that trial counsel did not understand the rules of evidence. Contrary to defendant’s asse rtion, the fact that trial counsel filed a motion seeking permissi on to present testimony regardin g the victims’ prior violent crime convictions does not establish a misunderstanding of the rules. While the trial judge ruled that
the victims’ convictions were in admissible as specific instance s of conduct, defendant does not argue that trial counsel misstated or misinterpreted the eviden tiary rules in his motion or in his arguments before the trial court. Defendant cannot, in hindsig ht, fault trial counsel for making an unsuccessful attempt to request admission of evidence that w ould greatly aid defendant’s selfdefense theory.

Defendant’s argument also fails for the same reasons his other ineffective assistance claims failed. Despite defenda nt’s claim that it would be “eas y” to locate witnesses who would testify with regard to the victims’ violent propensities, defen dant has failed to provide the name of a single witness, other than himself, who would so testify. Defendant’s assertion that, at the very least, he could have testified regarding his opinion of th e victims’ violent natures is drastically undermined by defendant’s trial testimony, which in dicates that he did not know one of the victims before their confrontation that evening. Finall y, defendant has offered no proof
that trial counsel failed to s eek out witnesses and discovered either that the victims did not have a-5- reputation for violence, or that there were no witnesses availa ble to testify in that regard. Again, without a factual predicate contained in the record, defendant fails to overcome the strong presumption that trial counsel e mployed effective trial strateg y. See Ackerman , 257 Mich App at

455.

Affirmed.

/s/ Kathleen Jansen /s/ William B. Murphy
/s/ Michael J. Riordan