If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED May 11, 2023

v No. 353398 Jackson Circuit Court DEONTA DUWAND SIMPSON, LC No. 19

- 001000

- FH

Defendant

- Appellant.

Before: B OONSTRA , P .J., and G ADOLA and Y ATES , JJ.

P ER C URIAM

. Defendant, Deonta Duwand Simpson, appeals of right his convictions o n one count of possession of methamphetamine with intent to deliver, MCL 333.7401(2)(b)( i ) ; and one count of possession of cocaine with intent to deliver, MCL 333.7401(2)(a)( iv ) . The trial court sentenced defendant as a fourth

- offense habitual offender, MCL 769.12, to concurrent prison terms of 144 to 360 months on the two cou nts

. After moving unsuccessfully for a new trial, defendant now argu es that his motion for a new trial should have been granted based on newly discovered evidence and that defense counsel rendered ineffective assistance because of her conflict of interest

. W e affirm

.

I. FACTUAL BACKGROU ND

On February 26, 2019, Officer Joe Merritt and Detective Sam Sukovich were part of a team of law

- enforcement officers conducting surveillance of suspected drug activity at a house located
at 329 West F ranklin Street in Jackson. A fter arriving t o execute a search warrant at that house, law

- enforcement officers saw four people leave the house and get in to a v ehicle parked behind the house

. When the four people in the vehicle saw the officers approaching, the front

- seat p assenger (later alleged to be Anthony Estes) left the vehicle and ran. Officer Merritt gave chase on foot but he was unable to apprehend the fleeing passenger. Defendant and his nephew, D a marius Simpson, left the vehicle on the driver’s side and defendan t threw a baseball

- sized object over a ne arby fence while walking away from the officers. Eventually, defendant and his nephew complied with police commands to stop and they were apprehended. The fourth person sitting in the vehicle, D i on Scott, was apprehended after remaining in the vehicle with his hands up. Detective Sukovich found the sandwich bag thrown over the fence, and laboratory analysis by the Michigan State Police Forensic- 2

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Science Division confirmed that the bag contained cocai ne and methamphetamine. Officers seized

a dditional drugs, a loaded handgun, and a digital scale from inside the vehicle.

Defendant was charged and retained attorney Suzanna Kostovski to defend him in this case. Meanwhile, Kostov s ki also represent ed defe ndant’s nephew

, Damarius

, in an unrelated case

. The record does not reveal whether defendant was ever informed about a ny potential conflict arising out of Kostovski’s representation of D a marius. After a two

- day jury trial on October 14 and 15, 2019, defendant was convicted on the charges of possession of cocaine and methamphetamine with intent to deliver those drugs.

At the end of defendant’s trial, Estes approached Kostovski and then signed an affidavit on October 18, 2019, stat ing that he was the p erson who fled from the vehicle and threw the bag of drugs over the fence

. D efendant moved for a new trial based on th e newly discovered evidence in the form of Estes’s affidavit. Over the course of three years, the trial court conducted hearings on defe ndant’s evolving request for a new trial. O n November 22, 2022, the trial court issued a written opinion and order denying defendant’s motion for a new trial. This appeal followed.

II. LEGAL ANALYSIS

First and foremost, defendant asserts that the trial court erred in denying his motion for a new trial. We review the trial court’s ruling on a motion for a new trial for an abuse of discretion. People v Rao , 491 Mich 271, 279; 815 NW2d 105 (2012). “An abuse of discretion occurs when the trial court rend ers a decision falling outside the range of principle d decisions.” Id. Defendant further insists that he was deprived of the effective assistance of counsel because his trial attorney was operating under a conflict of interest . An attorney acting with a conflict of interest denies the defendant the effective assistance of counsel by breaching “ ‘the duty of loyalty, perhaps the most basic of counsel’s duties.’ ” People v Smith , 456 Mich 543, 556; 581 NW2d 654 (1998). In order “to demonstrate that a con flict of interest has violated his Sixth Amendment rights,” defendant has to establish “ ‘that an actual conflict of interest adversely affected his lawyer’s performance.’ ” Id. “ ‘[T]he determination of the existence of a conflict of interest is a quest ion of fact and should be reviewed under the clearly erroneous standard[.]’ ” People v Pfaffle , 246 Mich App 282, 288 n 5; 632 NW2d 162 (2001).

A

. MOTION FOR A NEW TRI AL

Defendant’s effort to obtain a new trial was every bit as chaotic as it was protracted. First, defendant filed a motion for a new trial on October 30, 2019, which was only two weeks after the jury returned its verdict and before defendant was sentenced. The trial court addressed the motion, which included the affidavit of Anthon y Estes, at a hearing on November 12, 2019. The trial court promised to conduct an evidentiary hearing on the motion, but insisted that that hearing would not take place until after defendant was sentenced on December 4, 2019. As it turned out, however, the sentencing hearing could not take place on that scheduled date because defendant removed his tether and absconded. Thus, on December 4, 2019, the trial court conducted a brief hearing where it issued a bench warrant for defendant’s arrest. After defe ndant was arrested on the bench warrant, the trial court sentenced him on March 4, 2020

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O n August 25, 2020, defendant filed a post

- judgment motion for a new trial that referred to the motion he filed before he was sentenced. On November 1, 2021, the tri al court took up that motion at a hearing where Kostovski and Joel Kershaw both appeared on behalf of defendant and Anthony Estes appeared as a witness for the defense. But the trial court informed Estes of his right against self

- incrimination, which prom pted Estes to invoke that righ t. As a result, the defense had no witness to call, so the trial court granted their request for an adjournment of the hearing on their

new

- trial motion.

When the hearing continued on March 7, 2022, Kostovski made an oral mo tion to withdraw as counsel for defendant in order to free herself to testify as a witness about what Estes said to her. The prosecutor vigorously objected, noting legal, ethical, and practical problems with Kostovski’s proposed approach. Kershaw took ov er the responsibilit y as defendant’s lead attorney and called defendant’s nephew, D a marius Simpson , to testify for the defense. D a marius had not testified at defendant’s trial, but more than two years after that trial ended he explained what happened on t he day the search warrant was executed and defendant was arrested. He testified that the four men in the car that day were “smoking weed” when the police arrived, that the officers accused him of throwing the sandwich bag of drugs over the fence, that he did not see defendant throw anything that day, and that Estes

— who was under 17 years of age then

—had run away from the police that day

. But D a marius conceded that he knew defendant had been charged with possessing the drugs in the sandwich bag and that de fendant was going to trial on those charges.

Four weeks later, on April 4, 2022, the trial court heard testimony from Detective Sukovich and Attorney Kostovski. A fter the trial court granted Kostovski’s motion to withdraw as counsel for defendant, Kostovski testified about her conversations with Estes. Specifically, she stated that, on the last day of defendant’s trial, Estes told her that he was in the vehicle with defendant and the other two men (D a marius Simpson and Dion Scott) when the police a rrived, that “he threw a bag of narcotics, took off running, he was chased by the police but they never caught up to him.” Also, Kostovski testified that Estes tried to talk to the prosecutor in the courtroom on the last day of trial. The trial court the n admitted into evidence the affidavit that Estes signed on October 18, 2019. In
response, the prosecution called Detective Sukovich, who reaffirmed his testimony at trial that he saw defendant throw the bag of drugs over the fence. He also explained tha t the young man who ran from the vehicle and escaped did not throw anything. Finally, Detective Sukovich stated that Estes approached him in the courtroom after the jury returned its verdict in d efendant’s trial , that Estes admitted that he was the one wh o ran from the police and escaped, and that Estes “definitely [was] a juvenile” when he ran from the scene.

The trial court asked both sides for written briefs, but on May 20, 2022, Attorney Kershaw “was withdrawn as counsel” for defendant and Attorney Da niel Bremer was appointed to take the place of Kershaw. Then, on September 16, 2022, when the evidentiary hearing resumed, Bremer called Kershaw as a witness, thereby making Kershaw the second attorney who testified o n behalf of defendant. As Bremer expl ained:

I spoke with Susan [sic] Kostovski about this, she told me that she would invoke attorney/client privilege and not testify with respect to what Damarius Simpson told her and she cannot waive by her actions or otherwise the attorney/client privilege. So, I see her as an unavailable witness and because of that I’m going to ask Mr.- 4

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Kershaw about what sh e told him. I think that’s a statement against interest, pure and simple.

Oddly, Bremer initially tried to elicit testimony from Kershaw about what D a marius Simpson told him, but Bremer ran headlong into a valid hearsay objection. Confusion set in at tha t point, so in order to make a comprehensive record, the trial court permitted Bremer to ask Kershaw about what D a marius S impson had said to him. Next, Bremer asked Kershaw about what Attorney Ko s tovski told him, strongly suggesting that the rules of hear say no longer had any bearing on the proceedings or even the legal analysis of the issues. That inquiry prompted Kershaw to explain that Kostovski had represented D a marius Simpson on “a relatively minor matter” and that D a marius Simpson told her in confid ence “that that was his dope” that was thrown over the fence.

On November 22, 2022, the trial court finally brought an end to the madness by rendering an opinion and order denying defendant’s motion for a new trial. Applying the four

- part test that our S upreme Court prescribed in People v Cress , 468 Mich 678, 692; 664 NW2d 174 (2003), the trial court carefully considered and rejected defendant’s request for a new trial based upon newly discovered evidence. We readily conclude that the trial court did not abuse its discretion in ruling that defendant provided no basis for post

- trial relief. Indeed, the record in th is case offers a classic example of why “ ‘ motions for a new trial on the ground of newly

- discovered evidence are looked upon with disfavor[.]’ ” Rao , 491 Mich at 279

- 280.

To obtain a new trial based upon newly discovered evidence, the defendant must establish : (1) the evidence itself, not merely its materiality, was newly discovered ; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence

, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probabl e on retrial. Cress , 468 Mich at 692

. The most fundamental problem defendant faces is that e vidence

“ is not newly discovered if the defendant or defense counsel was aware of the evidence at the time of trial

. ” Rao , 491 Mich at 281

. D efendant knew the i dentities of the three others who were in the vehicle with him when the police arrived at 329 West Franklin Street with a search warrant. Indeed, Damarius Simpson was defendant’s nephew, yet the record is bereft of evidence that defendant or his attorney m ade any attempt to obtain the testimony o f his nephew at trial. Similarly, the record reveals that Anthony Estes attended defendant’s trial and spoke with the people in the courtroom, yet neither defendant nor his attorney made any effort to put Estes on the witness stand. Therefore, defendant has utterly failed to establish that the testimony of those potential witnesses was newly discovered evidence.

Beyond that, defendant has come up short in showing that he “could not, using reasonable diligence, have discovered and produced the evidence at trial[.]” Cress , 468 Mich at 692

. Even if Damarius Simpson and Estes might have invoked their Fifth Amendment right to avoid testifying

, that does not excuse defendant from undertaking efforts to obtain their testimony. As our Supreme Court noted, “when the evidence is claimed to be un available because of a codefendant’s assertion of the Fifth Amendment privilege, reasonable diligence might include requesting a severance or pursuing other procedural remedies t o admit the testimony.” Rao , 491 Mich at 284 . “The point is that the law affords a defendant procedural avenues to secure and produce evidence ” that must be employed “in a timely manner because evidence that is known to the defendant, yet not produced

un til after trial, will not be considered grounds for a new trial.” Id.- 5

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Finally, defendant has failed to show that a different result is probable on retrial with the evidence that he describes as newly discovered . To determine whether newly discovered evi dence makes a different result probable , a trial court must first consider whether the evidence i s credible. People v Johnson , 502 Mich 541, 566

- 567; 918 NW2d 676 (2018). The “trial court’s credibility determination must bear in mind what a reasonable ju ror might make of the testimony, and not what the trial court itself might decide, were it the ultimate fact

- finder.” Id . at 568

. In this case, two law

- enforcement officers testified at trial , and Detective Sukovich stated that defendant “had about a bas eball sized object in his hand and he looked at me and then just lobbed it southbound over a fence into the yard of the residence directly south.” Both witnesses whose testimony would be the newly discovered evidence purportedly established that Estes

— rat her than defendant or his nephew

— was the one who threw the bag of drugs over the fence. But Officer Merritt, who chased the young man who ran from the vehicle, testified that he did not see anyone throw anything even though he kept a close eye on the youn g man from the very beginning of the chase. Consequently, even if Estes testified that he threw the bag of drugs over the fence, that testimony would not have overcome the interlocking testimony of the two law

- enforcement officers. In sum, as the record makes clear, the trial court did not commit an abuse of discretion in denying defendant’s new

- trial motion based on newly discovered evidence.

B

. COUNSEL’S CONFLICT O F INTEREST

Defendant argues that defense counsel rendered ineffective assistance by operating under

a conflict of interest that prevented her from pursuing and introducing evidence that would have exonerated defendant

. But defendant did not raise this issue in the trial court, so the trial court had no reason to develop a record on t he conflict

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- interest issue

. Accordingly, our review on appeal is restricted to mistakes that are apparent on the record. People v Gioglio (On Remand) , 296 Mich App 12, 20; 815 NW2d 589 (2012) , vacated not in relevant part 493 Mich 864 (2012 )

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To demo nstrate that a conflict of interest violated his Sixth Amendment rights, “defendant ‘must establish that an actual conflict of interest adversely affected his lawyer’s performance.’ ” Smith , 456 Mich at 556 . At torney Kostovski explained that she had rese rvations about testifying during the evidentiary hearing because of her attorney

- client relationships with both defendant and Damarius . Other than that , the only evidence regarding her conflict of interest came from A ttorney Kershaw , who testified about s tatements Kostovski made to him about Damariu s Simpson’s talks with her. Th ose statements , which constituted h earsay within hearsay , provided little information about the nature of Kostovski’s purported conflict of interest.

Defendant contends that because of Kostovski’s conflict of interest, she did not interview the other occupants of the vehicle and she did not have the bag that contained the drugs tested for fingerprints or DNA. But defendant did not offer any evidence to establish that Kostovsk i did not interview or consider calling witnesses

, nor did defendant provide any evidence that any witness es would be willing to testify. In fact, the decision by Estes to exercise his Fifth Amendment right to remain silent at the post

- trial hearing on de fendant’s motion for a new trial bore no relationship to the alleged conflict of interest. Moreover

, Damarius was called as a witness during the post

- trial evidentiary hearing , but he provided no evidence as to whether he was interviewed or considered

as a witness during trial preparation. Therefore, although d efendant speculate s that witnesses we re not interviewed because of the conflict of interest , he has offered no support for t h at allegation.- 6

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Similarly , defendant has failed to provide evidence to show that Kostovski did not consider DNA testing during trial preparation. Record evidence revealed that DNA testing was not standard policy . Law

- enforcement agencies test contents
, rather than packaging

, due to the risk of fentanyl transfer. Therefore, defendant would have had to seek testing on his own. Defendant speculate s that Kostovski’s decision not to obtain independent lab oratory analysis for DNA could have been because of her conflict of interest , but mere speculation does not establish that de fense counsel’s performance was adversely affected. Defendant offer ed no proof that independent DNA analysis would have exonerated him. Accordingly

, defendant has not established that his defense counsel labored under “an a ctual conflict of interest [ tha t ] adversely affected his lawyer’s performance.” See Smith , 456 Mich at 556

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Affirmed.

/s/ Mark T. Boonstra /s/ Michael F. Gadola /s/ Christopher P. Yates