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UNPUBLISHED 

August 12, 2021

v No. 351885

St. Clair Circuit Court

ZACHARY ALLEN HOLMAN, LC No. 19-001757-FC

Defendant-Appellant.

Before: RIORDAN, P.J., and MARKEY and SWARTZLE, JJ.

PER CURIAM.

Defendant, Zachary Allen Holman, appeals as of right his jury-trial conviction of assault 

with intent to commit murder (AWIM), MCL 750.83. The trial court sentenced defendant as a 

fourth-offense habitual offender, MCL 769.12, to a term of 40 to 80 years in prison. Finding no 

error warranting reversal, we affirm defendant’s conviction and sentence.

I. BACKGROUND

Defendant’s conviction arose from a nonfatal stabbing at a trailer park on the evening of 

July 2, 2019. Multiple witnesses to the stabbing, including the victim and defendant, testified at 

trial. Most of the relevant facts underlying defendant’s conviction are undisputed, given his

admission that he intentionally stabbed the victim, believing him to be someone else.

Defendant’s Request for New Trial Counsel. About two weeks before trial, defendant 

requested that the trial court appoint new counsel to represent him, arguing that his assigned 

counsel had been ineffective in representing him during pretrial preparations. For example, 

defendant argued that his trial counsel was ineffective because she had declined to send the butcher 

knife that he had used to stab the victim for some type of forensic testing. The trial court indicated 

that this was a “straightforward case,” that defendant’s trial counsel was in charge of making 

strategic decisions related to the case, and that defendant had failed to demonstrate good cause 

warranting the appointment of new counsel. Furthermore, the trial court held that the appointment 

of substitute trial counsel only two weeks before trial would unreasonably disrupt the judicial 

process by delaying trial. Therefore, the trial court denied defendant’s request for the appointment 

of new trial counsel.
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Jury Voir Dire. On the first day of trial, the trial court stated that it would limit the parties’ 

voir dire of “the initial panel” of prospective jurors “to 15 minutes per side,” but it did not state or 

enforce any time limitation for voir dire of jurors who were subsequently seated, i.e., those seated 

following the exercise of challenges for cause or peremptory challenges. Moreover, because the 

prosecutor exceeded the 15-minute period when questioning the initial panel—evidently spending 

approximately 17 minutes on such voir dire—the trial court informed defense counsel that she 

could also “go a little bit over if she need[ed] to.” Specifically, the trial court informed defense 

counsel that she would have “about 17 minutes or so if [she chose] to use them,” but defense 

counsel replied: “I won’t use them.”

Shortly before the empaneled jurors were sworn, the trial court asked defense counsel 

whether she wished to exercise any challenges for cause, and she replied: “Pass for cause, your 

Honor.” Thereafter, the trial court asked whether the defense wished to exercise any further 

peremptory challenges, and after requesting “a moment” to consider, defense counsel answered: 

“Defense is satisfied, your Honor.” In other words, defendant’s trial counsel declined to exercise 

any further peremptory challenges, and then she affirmatively indicated that the defense was 

“satisfied” with the empaneled jury. 

Theories of the Case. At trial, the prosecutor’s theory of the case was as follows: (1) on 

the day of the stabbing, while drinking with friends outside one of the homes in the trailer park, 

defendant was involved in a verbal confrontation with Kyle Vanreyendam, with whom he had also 

argued the day before; (2) during the confrontation, the men exchanged threats, and the intoxicated 

defendant threatened to kill Vanreyendam; (3) defendant subsequently left and walked to his 

girlfriend’s nearby trailer, where he sent several text messages suggesting that he intended to kill 

Vanreyendam; (4) after retrieving an “eight inch butcher knife” from his girlfriend’s house, 

defendant returned to the scene of the confrontation; (5) it had grown dark, and defendant mistook 

Justin Watson (“the victim”) for Vanreyendam; (6) intending to kill Vanreyendam, defendant 

rushed up and stabbed the victim several times, inflicting three serious but nonfatal wounds and 

apologizing before fleeing the scene on foot; and (7) defendant was guilty of AWIM under a 

transferred-intent theory. The defense theory of the case was that, although defendant intentionally 

stabbed the victim, believing that he was stabbing Vanreyendam, he did so intending only “to 

injure or do great bodily harm,” not with the specific intent to commit murder. 

Defendant’s Testimony and Incriminating Statements. Defendant indicated that on the 

evening of the stabbing, he and several others were drinking alcohol and consuming marijuana. 

Defendant claimed that he “had problems” with Vanreyendam in the past and that there was “bad 

blood” between the two because Vanreyendam was romantically interested in defendant’s 

girlfriend. According to defendant, on the night of the stabbing, Vanreyendam claimed “that he 

was a member of the Latin Kings gang,” and defendant “called him out” as a liar. Vanreyendam 

“got really angry,” began to threaten defendant, and indicated that if defendant did not fight him, 

he was “going to get a gun and . . . come shoot the trailer up in the middle of the night.” 

Thereafter, defendant left the area, without “say[ing] anything to anybody,” and walked 

back to his girlfriend’s trailer. He began to send text messages to his girlfriend, “saying anything 

and everything” he could “to try to get [Vanreyendam] to leave.” Defendant testified that he 

“really didn’t want to go back over there because of the threats that were made, but at the same 

time [defendant] was worried about what [Vanreyendam] might do because [defendant] wouldn’t 
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fight him.” Although he admittedly sent text messages threatening Vanreyendam’s life, defendant 

claimed that he was “quite intoxicated” and that he “had no intentions of actually hurting anybody 

at that point.” He merely “wanted [Vanreyendam] to leave.” Defendant further admitted, 

however, that he took a butcher knife from his girlfriend’s home and decided to return to the site 

of his confrontation with Vanreyendam, claiming that he intended to “scare” his rival away. 

Defendant admitted knowing that the butcher knife he wielded that evening was a potentially 

deadly weapon.

When defendant arrived back at the scene, it was “very dark” and he “couldn’t see a whole 

lot” in his intoxicated state. According to defendant, he saw “a group of people” standing around, 

but he “couldn’t tell who was who or who was where.” He approached the group, asked where 

Vanreyendam was, and thought that someone pointed at the victim. Turning to look toward the 

victim, whom he believed to be Vanreyendam, defendant saw him stand up from leaning against 

a car and reach toward his belt with one hand, and defendant “perceived that to be reaching for a 

gun.” Defendant claimed that he believed that the other man was “trying to brandish a firearm,” 

so he “immediately jumped on to him and stabbed him.” Defendant admitted that he “attempted 

to stab him in the arms.” As he turned and fled, the victim lowered his arms, and in attempting to 

stab him in the arm again, defendant stabbed him in the side. 

After that, “[e]verybody started yelling,” and upon taking “a little bit of a closer look at 

who it was,” defendant realized that he had stabbed the wrong person. He looked at the wound on 

the victim’s side, told him to call an ambulance, and said, “I’m sorry I didn’t mean to do that.” 

Defendant claimed that he placed the knife “on somebody’s car” and left the scene, walking back 

to his girlfriend’s house. He later attempted to go back to the scene to get the knife and “hide that 

piece of evidence,” but it was gone because the car on which he had placed it had been driven 

away.

When police arrested defendant, they seized his cell phone. Detective Steve Surman 

subsequently search the cell phone and located approximately 55 text messages relevant to this 

case, which were sent to and from the cell phones of defendant and his girlfriend. Without 

objection, the text messages were introduced into evidence at trial. As relevant here, defendant 

sent his girlfriend the following text messages on the evening of the stabbing: (1) around 10:28 

p.m., a message stating, “ ‘Myou [sic] guys better hide’ Kyle” [i.e., Vanreyendam]; (2) also around 

10:28 p.m., a message stating, “Immma [sic] show him what he really talking about”; (3) around 

10:30 p.m., a message stating, in part, “Hide him or he dies . . . he tested me . . .”; (4) around 10:32 

p.m., a message stating, “TE [sic] Kyle to go away. Other wise [sic] he WILL get hurt”; (5) around 

10:36 p.m., a message stating, “He has to die”; and (6) also around 10:36 p.m., a message stating, 

“only way to preserve rspext [sic].”

Detective Surman also discovered text message sent between defendant and his mother on 

the evening in question, including texts sent after the stabbing incident, which seemingly 

demonstrated consciousness of guilt. For instance, around 11:50 p.m., defendant sent a message 

stating: “Even if I leave now if anybody actually did give my name they find me regardless. I 

[f***ed] up. If I have to pay the price I have to pay the price. Don’t ever blame yourself. I made 

myself this way not you.” Later, defendant sent additional messages indicating that he might 

“belong in prison,” that he was hoping that the victim did not “snitch” on him, and that he only 

“showed mercy” to the victim when he heard people “yelling that that was the wrong guy.”
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Depictions of the Victim’s Scars at Trial. At trial, the victim was permitted, without 

objection, to step down from the witness box and show the jury the scars from the stab wounds he 

sustained. Also without objection, the prosecutor introduced several photographs of the victim’s

postsurgical wounds. When asked, the victim indicated that his scars had been caused (or 

enlarged), at least in part, by the surgical procedures he underwent, not just the initial stabbing. 

Evidence of Witness Bias. A responding police officer indicated that, when police first 

responded to the scene of the stabbing, none of the witnesses were cooperative, refusing to tell 

police who had stabbed the victim. On the first day of trial, while cross-examining Deputy John 

Maxey, defendant’s trial counsel inquired whether “the noncooperation” of the witnesses to the 

stabbing delayed the police investigation, and Deputy Maxey replied: “Yes, it did not help.” 

Counsel followed up by asking Deputy Maxey: “And were any of those people charged with 

obstruction of justice—” The question was interrupted when the prosecutor objected, arguing that 

it was irrelevant whether any of the witnesses were charged with any offenses related to the 

stabbing incident or the resulting police investigation. When the trial court asked defense counsel 

for her response, she initially replied: “Well they can get the idea they weren’t charged I’m sure. 

So I’m okay with it.” But she went on to argue that the matter was relevant to show that the police 

had “someone who impeded their investigation.” Following an off-the-record conference at the 

bench, the trial court sustained the prosecutor’s objection on grounds of relevance and struck 

defense counsel’s related question, instructing the jury not to consider that question or any

response it might have perceived from Deputy Maxey. 

Similarly, on the second day of trial, defendant’s trial counsel asked defendant’s girlfriend 

whether she had ever been “charged with anything because of” her refusal to cooperate with the 

police at the scene of the stabbing. Before the witness answered, the prosecutor objected on 

grounds of relevance. Following a bench conference, the trial court sustained the objection, struck 

defense counsel’s question, and instructed counsel not to ask any similar questions of other 

witnesses during the trial. 

Vanreyendam’s Nonappearance at Trial. During their investigation, police eventually 

learned that Vanreyendam had been present at the scene on the evening of the stabbing, but they 

were never able to locate him to question him in this matter. Nevertheless, the prosecutor listed 

Vanreyendam as an expected witness on the initial witness list. Outside of the jury’s presence, the 

prosecutor called Detective Steve Rickert to testify about the prosecutor’s efforts to locate 

Vanreyendam and secure his presence as a witness at trial. Detective Rickert indicated that, in 

attempting to serve a subpoena on Vanreyendam, he “spoke to both his father and an aunt,” who 

indicated that Vanreyendam’s whereabouts were unknown. They said that Vanreyendam 

“bounces between couches,” and that they doubted that he would willingly contact police, given 

that “he has a current warrant for his arrest” arising from a parole violation. Detective Rickert 

confirmed that Vanreyendam would be arrested if he had any contact with law enforcement. 

Following Detective Rickert’s testimony, defendant’s trial counsel conceded that the 

prosecutor had seemingly shown “good cause” for the failure to produce Vanreyendam as a 

witness, given that he was missing and on the run, but counsel nevertheless asked for a formal 

ruling on the matter from the trial court. After entertaining oral argument, the trial court held that 

the prosecutor had carried his burden of demonstrating that he had made reasonable efforts to 

produce Vanreyendam at trial.
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The jury convicted defendant of AWIM and the trial court sentenced him as set forth 

earlier. This appeal followed.

II. ANALYSIS

On appeal, defendant’s appellate counsel raises several claims of error, and defendant 

raises several others in a Standard 4 brief. We analyze each in turn.

A. JURY VOIR DIRE

Defendant first argues that the trial court abused its discretion by “limiting the entirety of 

attorney voir dire to 15 minutes per side,” which “prevented defense counsel from adequately 

questioning prospective jurors to discover any biases or prejudices that might have warranted a 

challenge for cause or a peremptory challenge.”

To the extent that defendant asserts that the parties were afforded “only 15 minutes to 

conduct the voir dire” during jury selection, he misstates the record. As stated above, the trial 

court stated that it would limit the parties’ voir dire of “the initial panel” of prospective jurors “to 

15 minutes per side,” but it did not state or enforce any such time limitation for voir dire of jurors 

who were subsequently seated, i.e., those seated following the exercise of challenges for cause or 

peremptory challenges. Moreover, the trial court informed defense counsel that she would have 

“about 17 minutes or so if [she chose] to use them,” and defense counsel replied: “I won’t use 

them.”

We conclude that defendant has waived appellate review of this issue because his trial 

attorney waived any error—not once, but twice. Immediately before the jury was empaneled, 

defendant’s trial counsel declined to exercise any further peremptory challenges, and she 

affirmatively indicated that the defense was “satisfied” with the jury. By failing to exhaust 

defendant’s peremptory challenges, his trial counsel waived the current claim of error, and she 

also waived it by expressing satisfaction with the empaneled jury. See People v Rose, 268 Mich 

529, 531; 256 NW 536 (1934) (holding that, even if the trial court “erroneously restricted . . . the 

examination of jurors prior to their being sworn to try the case, such error is waived if plaintiff in 

error fails to exhaust his peremptory challenges,” and further holding that “[i]f the objecting party 

afterwards expresses himself as satisfied with the jury, he thereby waives the error.”). Waiver 

“extinguishes any error and precludes defendant from raising the issue on appeal.” People v 

Carter, 462 Mich 206, 209; 612 NW2d 144 (2000).

B. CROSS-EXAMINATION REGARDING WITNESS BIAS

Defendant next argues that the trial court abused its discretion by precluding his trial 

counsel from questioning defendant’s girlfriend and Deputy Maxey “as to whether or not others 

were charged with anything involving this case, specifically obstruction of justice for lying to the 

police during the investigation.” Defendant argues that the trial court erred by concluding that 

such evidence was not relevant proof of potential witness bias under MRE 401. Defendant also 

argues that the trial court’s error deprived him of his right to confront the witnesses against him, 

which includes the right to “full cross-examination of all witnesses.”
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 To preserve an issue regarding the exclusion of evidence, the proponent of such evidence 

must make an offer of proof, unless “the substance of the evidence . . . was apparent from the 

context within which questions were asked.” People v Grant, 445 Mich 535, 545; 520 NW2d 123 

(1994), quoting MRE 103(a)(2). Although defendant did not make an offer of proof after the trial 

court sustained the prosecutor’s objections to the disputed testimony, it appears from the context

in the record that the leading questions asked by defendant’s trial counsel were an attempt to elicit 

testimony about whether any witnesses to the stabbing were charged with obstruction of justice 

for refusing to cooperate with the police investigation. Thus, this issue is preserved with respect 

to the trial court’s exclusion of evidence. See People v Snyder, 462 Mich 38, 43; 609 NW2d 831 

(2000). Because defendant raised no argument concerning the Confrontation Clause in the trial 

court, however, to the extent that defendant now argues that the trial court’s exclusion of the 

disputed testimony violated his constitutional rights to confront and fully cross-examine the 

witnesses against him, this issue is unpreserved. See People v Jackson, 292 Mich App 583, 594; 

808 NW2d 541 (2011). 

“We review for an abuse of discretion a trial court’s decision to admit or exclude evidence, 

while reviewing de novo any preliminary legal questions regarding admissibility. An abuse of 

discretion occurs when the court chooses an outcome that falls outside the range of reasonable and 

principled outcomes.” People v Bass, 317 Mich App 241, 255-256; 893 NW2d 140 (2016) 

(cleaned up). Although the “admission or exclusion of evidence because of an erroneous 

interpretation of law is necessarily an abuse of discretion,” Elher v Misra, 499 Mich 11, 21; 878 

NW2d 790 (2016), a “trial court’s decision on a close evidentiary question ordinarily cannot be an 

abuse of discretion,” Bass, 317 Mich App at 256. “Unpreserved claims of constitutional error are 

reviewed for plain error affecting substantial rights.” Jackson, 292 Mich App at 594.

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any 

fact that is of consequence to the determination of the action more probable or less probable than 

it would be without the evidence.” MRE 401. “Evidence need not be directed at an element of 

the offense or a defense to be material.” People v McGhee, 268 Mich App 600, 637; 709 NW2d 

595 (2005). “A witness’s bias is always relevant,” and a criminal defendant “is entitled to have 

the jury consider any fact that may have influenced the witness’ testimony.” Id. (cleaned up). 

Under MRE 402, all relevant evidence is admissible, and evidence which is not relevant is not 

admissible. Moreover, under MRE 611(c), “[a] witness may be cross-examined on any matter 

relevant to any issue in the case, including credibility.” The trial court may, however, “limit crossexamination with respect to matters not testified to on direct examination,” MRE 611(c), and “the 

trial court has wide discretion regarding admissibility of bias during cross-examination under MRE 

611,” People v Layher, 464 Mich 756, 765; 631 NW2d 281 (2001).

In this case, the trial court erred by concluding that it was not relevant whether any of the 

trial witnesses were charged with any crimes—including obstruction of justice—for their initial 

failure to cooperate with the police at the scene of the stabbing. “A proponent’s attempt to discredit 

a witness’ testimony by showing that the witness may be biased in favor of, or against, a party or 

witness, is highly relevant.” Id. at 768. Here, evidence that one or more of the prosecutor’s 

witnesses had been charged with—or threatened with charges—regarding their noncooperation 

with the police was relevant concerning the credibility and potential bias of such witnesses, and 

evidence that such witnesses had not been charged or threatened with charges would have been 

relevant for those same purposes. In other words, such evidence was relevant to whether the 
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witnesses at trial had a motive to testify untruthfully, and the trial court erred by concluding 

otherwise. Thus, the exclusion of the disputed testimony for lack of relevance necessarily 

constituted an abuse of discretion. See Elher, 499 Mich at 21.

Even so, defendant is not entitled to appellate relief on this basis. Under MRE 103(a), 

“[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a 

substantial right of the party is affected.” Under the harmless-error rule set forth by MCL 769.26, 

defendant is only entitled to reversal if he carries his burden of demonstrating “that it is more 

probable than not that the error was outcome determinative.” See People v Lukity, 460 Mich 484, 

496; 596 NW2d 607 (1999).

“The elements of assault with intent to commit murder are (1) an assault, (2) with an actual 

intent to kill, (3) which, if successful, would make the killing murder.” Jackson, 292 Mich App at 

588. Defendant has failed to carry his burden of demonstrating that the trial court’s disputed ruling 

was outcome-determinative. Although evidence of bias is usually highly relevant because it helps 

the jury to determine a witness’s credibility, in this case, defendant admitted that he intentionally 

stabbed the victim several times with a butcher knife, and he also admitted to having threatened 

Vanreyendam’s life—several times—before mistakenly stabbing the victim. Indeed, after the 

stabbing, defendant sent a text message indicating that he had only shown the victim “mercy”

when he realized that he was attacking the wrong person. Thus, there was no genuine dispute on 

whether the prosecutor’s witnesses were fabricating their testimony about the stabbing.

Moreover, the principal issue at trial was defendant’s intent and the witnesses’ credibility 

was not critical to resolving that issue. At trial, the prosecutor argued that the principal evidence 

supporting a finding that defendant intended to kill the victim was defendant’s own text messages, 

defendant’s admissions that he returned to the scene armed with a knife because he felt threatened 

by Vanreyendam and wanted to eliminate that threat, and the manner in which defendant attacked 

the victim with the knife. In other words, the jury’s determination of defendant’s intent was not 

highly dependent on the credibility of the other witnesses.

Given the overwhelming evidence of defendant’s guilt, and the minimal importance of 

witness credibility in resolving the principal issue of defendant’s intent, defendant has failed to 

demonstrate that the trial court’s exclusion of the disputed evidence was outcome-determinative. 

Therefore, his claim of evidentiary error fails under harmless-error review.

For essentially those same reasons, defendant’s unpreserved argument under the 

Confrontation Clause necessarily fails. Even assuming that the trial court’s exclusion of the 

disputed evidence did plainly violate his right to confront the witnesses against him at trial, on this 

record, defendant has failed to demonstrate the requisite prejudice for relief under plain-error 

review because it was not outcome determinative. See People v Carines, 460 Mich 750, 763; 597 

NW2d 130 (1999).

C. OFFENSE VARIABLES

Defendant next argues that the trial court plainly erred at sentencing in its assessment of 

Offense Variables (OVs) 4 and 10. Defendant failed to raise these purported scoring errors in the 

trial court, and he did not raise them in a motion to remand in this Court. Thus, this issue is 
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unpreserved, see People v Jones, 297 Mich App 80, 83; 823 NW2d 312 (2012), and subject to 

plain-error review, see People v Odom, 276 Mich App 407, 411; 740 NW2d 557 (2007).

As defendant admits in his brief on appeal, his unpreserved claims of sentencing error do 

not affect the applicable sentencing guidelines range. The sentencing offense here was AWIM, 

which is a Class A offense. MCL 777.16d. Given defendant’s total prior record variable score of 

74—which he does not challenge here—and his total OV score of 125, defendant’s minimum 

guidelines range was 225 to 375 months or life in prison. MCL 777.62. Because defendant was 

sentenced as a fourth-offense habitual offender, his guidelines range was increased to 750 months 

or life. See MCL 777.21(3)(c). Even deducting the 10 points he was assessed for OV 4 and the 

15 points he was assessed for OV 10 from his total OV score of 125, he would nevertheless retain 

a total OV score of 100, and would remain at OV Level VI with the same resulting minimum 

guidelines range. MCL 777.62. Thus, defendant is not entitled to resentencing. See People v 

Francisco, 474 Mich 82, 91 n 8; 711 NW2d 44 (2006).

D. PROPORTIONALITY

Defendant next argues that, although his 40-year minimum sentence is within the 

appropriate guideline ranges, and although existing precedent indicates that this Court must affirm 

such a sentence under MCL 769.34(10), we should nevertheless conclude that his sentence is 

disproportionate under the Milbourn proportionality standard. Defendant’s argument is directly 

contrary to People v Armisted, 295 Mich App 32, 52; 811 NW2d 47 (2011):

Under the statutory sentencing guidelines, this Court must affirm a minimum 

sentence that falls within the appropriate guidelines range “absent an error in 

scoring the sentencing guidelines or inaccurate information relied upon in 

determining the defendant’s sentence.” MCL 769.34(10); see also People v 

Kimble, 470 Mich 305, 310-311, 684 NW2d 669 (2004). Conspicuously absent 

from Michigan’s current sentencing statutes is any mention of the principle of 

proportionality or any discussion of factors that would render an otherwise proper 

sentence disproportionate. [Emphasis added.]

In People v Schrauben, 314 Mich App 181, 196 n 1; 868 NW2d 173 (2016), this Court held that 

our Supreme Court’s decision in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), “did 

not alter or diminish MCL 769.34(10).” Because these decisions have not been reversed or 

modified by our Supreme Court or a special conflict panel of this Court, they are binding here. 

See MCR 7.215(J)(1). Accordingly, we reject defendant’s claim of error. 

E. SUBSTITUTE COUNSEL

Defendant next argues that the trial court abused its discretion by denying his pretrial 

request for new counsel. We review for an abuse of discretion the trial court’s decision denying a 

motion for substitution of appointed counsel. People v McFall, 309 Mich App 377, 382; 873 

NW2d 112 (2015). We review for clear error any related factual findings. People v Daniels, 311 

Mich App 257, 265; 874 NW2d 732 (2015). 
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In McFall, 309 Mich App at 382-383, this Court stated many of the essential legal 

principles that are relevant here:

An indigent defendant is guaranteed the right to counsel; however, he is not 

entitled to have the attorney of his choice appointed simply by requesting that the 

attorney originally appointed be replaced. Substitution of counsel is warranted only 

upon a showing of good cause and where substitution will not unreasonably disrupt 

the judicial process. Good cause may exist when a legitimate difference of opinion 

develops between a defendant and his appointed counsel as to a fundamental trial 

tactic, when there is a destruction of communication and a breakdown in the 

attorney-client relationship, or when counsel shows a lack of diligence or interest. 

A mere allegation that a defendant lacks confidence in his or her attorney, 

unsupported by a substantial reason, does not amount to adequate cause. Likewise, 

a defendant’s general unhappiness with counsel’s representation is insufficient. 

[Cleaned up.]

In this case, the trial court found that the appointment of substitute counsel would 

unreasonably disrupt the judicial process by delaying trial. Given that defendant was charged with 

a serious felony, the strength of the evidence against him, and that defendant’s request for the 

appointment of substitute counsel occurred just 14 days before trial began, we find no clear error 

with the trial court’s conclusion that the appointment of substitute counsel would have unduly 

delayed these proceedings. Had new counsel been appointed, the trial court almost certainly would 

have been forced to adjourn trial to permit defendant’s new counsel to become familiar with the

case and prepare for trial. 

The trial court also concluded that defendant had failed to demonstrate good cause 

warranting the appointment of new counsel. Although a legitimate difference of opinion 

concerning a fundamental trial tactic may be good cause for the appointment of substitute counsel, 

in this case defendant indicated that he disagreed with his appointed counsel concerning specific 

strategic matters—such as whether to retain experts to perform forensic testing of some sort on the 

butcher knife—not the fundamental defense strategy. Decisions involving “professional judgment 

and trial strategy . . . are matters entrusted to the attorney,” and thus the client’s disagreement with 

an appointed attorney concerning such matters does “not warrant appointing substitute counsel.” 

Id. In light of the strength of the evidence against defendant, including his out-of-court statements 

admitting that he had stabbed the victim, defense counsel’s decision not to request forensic testing 

of the butcher knife used in the stabbing was a prudent strategy, and it was one that involved the 

exercise of professional judgment. Had such forensic testing revealed inculpatory evidence, it 

would have served only to strengthen the prosecutor’s case. On this record, there was no reason 

for counsel to expect that forensic testing would have revealed any exculpatory evidence—again, 

defendant admitted that he stabbed the victim with a butcher knife, and he apologized to the victim 

for doing so in the presence of several witnesses. Therefore, the trial court’s decision did not 

constitute an abuse of discretion.

F. INEFFECTIVE ASSISTANCE OF COUNSEL

In his Standard 4 brief, defendant raises several claims of ineffective assistance of counsel. 

Because no Ginther hearing took place in the trial court, “our review is limited to the facts on the 
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record.” People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000).1 “Whether defense 

counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear 

error the trial court’s findings of fact”—if any exist—“and reviews de novo questions of 

constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).

The “defendant has the burden of establishing the factual predicate for his claim of 

ineffective assistance of counsel.” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

Effective assistance of counsel is presumed, and the defendant bears a heavy 

burden of proving otherwise. To establish an ineffective assistance of counsel 

claim, a defendant must show that (1) counsel’s performance was below an 

objective standard of reasonableness under prevailing professional norms and (2) 

there is a reasonable probability that, but for counsel’s error, the result of the 

proceedings would have been different. [People v Lockett, 295 Mich App 165, 187; 

814 NW2d 295 (2012) (citations omitted).]

“A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 

Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). 

The “reviewing court must not evaluate counsel’s decisions with the benefit of hindsight,”

but should “ensure that counsel’s actions provided the defendant with the modicum of 

representation” constitutionally required. People v Grant, 470 Mich 477, 485; 684 NW2d 686 

(2004), citing Strickland, 466 US at 689. “Defense counsel is given wide discretion in matters of 

trial strategy because many calculated risks may be necessary in order to win difficult cases.” 

People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008). Thus, there is a “strong 

presumption that trial counsel’s performance was strategic,” and “[w]e will not substitute our 

judgment for that of counsel on matters of trial strategy.” Id. at 242-243. “Yet a court cannot 

insulate the review of counsel’s performance by calling it trial strategy.” Trakhtenberg, 493 Mich 

at 52. “The inquiry into whether counsel’s performance was reasonable is an objective one and 

requires the reviewing court to determine whether, in light of all the circumstances, the identified 

acts or omissions were outside the wide range of professionally competent assistance.” People v 

Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012) (cleaned up). Accordingly, the reviewing 

court must consider the range of potential reasons that counsel might have had for acting as she 

did. Id.

Defendant first argues that his trial counsel performed ineffectively by failing to raise a 

probable-cause challenge concerning the search warrant that was issued for defendant’s cell phone. 

But defendant has not provided this Court with the basic materials necessary to consider this 

issue—a copy of the search warrant in question or any record evidence concerning the affidavit or 

evidence upon which that warrant was issued. See United States v Leon, 468 US 897, 926; 104 S 

 

1

In the text of his Standard 4 brief, which is not supported by any affidavit or offer of proof, 

defendant now requests a remand for a Ginther hearing. Because defendant did not file a motion 

to remand under MCR 7.211(C)(1) and has not otherwise factually supported his various claims, 

we deny his remand request. See Bass, 317 Mich App at 276 n 12.
-11-

Ct 3405; 82 L Ed 2d 677 (1984). Nor has defendant cited any record evidence concerning whether 

the “fruits” of the search of his cell phone (i.e., his inculpatory text messages) would have been 

discovered through an independent source—voluntary disclosure by those with whom defendant 

texted on the evening in question—such that they would not have been subject to suppression. See 

Utah v Strieff, ___ US ___; 136 S Ct 2056, 2061; 195 L Ed 2d 400 (2016) (explaining that “the 

independent source doctrine allows trial courts to admit evidence obtained in an unlawful search 

if officers independently acquired it from a separate, independent source”). Finally, defendant has 

not presented any record evidence suggesting that, even if the search warrant itself was improperly 

issued, the fruits of the ensuing search would not have been admissible under the “good-faith 

reliance” exception to the exclusionary rule. See Leon, 468 US at 911, 913. Thus, defendant has 

failed to establish the factual predicate for his ineffective-assistance claim, which necessarily fails 

as a result.

Defendant next argues that his trial counsel was ineffective because she failed to investigate 

or attempt to request the appointment of “a medical expert to explain the injuries and how they 

were caused,” and “a DNA expert to dispute the weapon said to be used in the crime.” Counsel’s 

decision whether to retain an expert witness is a matter of trial strategy. Bass, 317 Mich App at 

279. Given the testimony of several witnesses that defendant stabbed the victim, and given that 

defendant admitted having done so using a butcher knife taken from his girlfriend’s home, there 

was no dispute at trial that defendant had done so. Nor has defendant presented any record 

evidence demonstrating that an analysis by medical experts or DNA experts would have yielded 

any exculpatory evidence in this case. In short, defendant has failed to rebut the strong 

presumption that trial counsel employed sound trial strategy in this regard, and he has also failed 

to demonstrate that, but for counsel’s failure to retain the disputed experts, there is a reasonable 

probability that the outcome of the trial would have been different.

Defendant further argues that, in light of his testimony that he stabbed the victim under the 

belief that the victim was reaching for a gun, trial counsel should have requested the model jury 

instructions for self-defense. “As a general rule, the killing of another person in self-defense by 

one who is free from fault is justifiable homicide if, under all the circumstances, he honestly and 

reasonably believes that he is in imminent danger of death or great bodily harm and that it is 

necessary for him to exercise deadly force.” People v Riddle, 467 Mich 116, 119; 649 NW2d 30 

(2002) (emphasis added). “The necessity element of self-defense normally requires that the actor 

try to avoid the use of deadly force if he can safely and reasonably do so, for example . . . by 

utilizing an obvious and safe avenue of retreat,” and “[o]ne who is involved in a physical 

altercation in which he is a willing participant . . . is required to take advantage of any reasonable 

and safe avenue of retreat before using deadly force against his adversary, should the altercation 

escalate into a deadly encounter.” Id. at 119-120. Moreover, “an act committed in self-defense 

but . . . in which defendant was the initial aggressor does not meet the elements of lawful selfdefense.” People v Heflin, 434 Mich 482, 509; 456 NW2d 10 (1990). And a defendant may “be 

held legally accountable as an aggressor for responsive conduct by another that is reasonably 

attributable to appellant’s own conduct.” People v Townes, 391 Mich 578, 592; 218 NW2d 136 

(1974). That is, a defendant who “is engaged in the commission of an act which is wrongful” may 

not legally employ deadly force to repel an assault that was provoked by the very “character” of 

his wrongful act. Id. at 593 (cleaned up).
-12-

In this case, defendant admitted that he retrieved a butcher knife from his girlfriend’s home 

and went to the neighbor’s trailer specifically intending to frighten Vanreyendam by brandishing 

the knife, and he also indicated that he approached the wrong person—the unarmed victim—with 

the knife instead. In other words, defendant was admittedly the initial aggressor here; he 

admittedly sought out a confrontation with Vanreyendam rather than fleeing from it; and he 

attacked the wrong person. Thus, even assuming that the victim had reached for a weapon, 

defendant would not have been entitled to a self-defense instruction because it was his own conduct 

that provoked a reaction by the victim. The aggressor who looms up out of the night and 

brandishes a butcher knife at an unsuspecting, innocent victim should not be heard to complain 

that, in reaction to the victim’s efforts at self-defense, the aggressor was forced to defend himself 

using his already-brandished knife. On this record, we cannot conclude that defendant’s trial 

counsel employed ineffective strategy by instead focusing the defense on the intent element for 

AWIM. 

Defendant also argues that his trial counsel performed ineffectively by failing to request 

that the trial court instruct the jury under M Crim JI 5.12 (“Prosecutor’s Failure to Produce 

Witness”) with regard to “[a] main witness, and a person referred to throughout the trial,” who 

“did not show up for trial.” Although defendant fails to name the nontestifying witness in question, 

it seems clear that this argument concerns Vanreyendam. In light of the trial court’s finding that 

the prosecutor had exercised due diligence in attempting to locate Vanreyendam—a fugitive—and 

subpoena him, any request to instruct the jury with M Crim JI 5.12 would have been futile. See 

People v Everett, 318 Mich App 511, 527; 899 NW2d 94 (2017) (“A missing witness instruction 

should be given if the trial court finds a lack of due diligence on the part of the prosecution in 

seeking to produce an endorsed witness.”) (emphasis added). We reject defendant’s argument 

because trial counsel is not ineffective for failing to make a futile motion. People v Foster, 319 

Mich App 365, 391; 901 NW2d 127 (2017). 

Defendant further argues that his trial counsel ought to have subpoenaed two unspecified 

individuals as defense witnesses, whose “names were mentioned consistently by almost every 

witness as having been present during the crime.” Aside from the fact that defendant fails to 

identify the two individuals whom he believes should have been subpoenaed, he has failed to 

present any evidence indicating that those individuals would have appeared at trial, any evidence 

to establish the substance of the testimony they would have offered, or any explanation of how 

such testimony might have altered the outcome of the trial. In other words, defendant has failed 

to establish the factual predicate for his instant claim of ineffective assistance, and the claim

necessarily fails as a result. 

Next, defendant argues that his trial counsel performed ineffectively by failing to object to 

the prosecutor’s introduction of several photographs of the victim’s postsurgical scars following 

the stabbing. Even assuming that counsel might have successfully objected to those photographs 

on the basis that they were more unfairly prejudicial than probative under MRE 403, we are 

nevertheless unpersuaded that defendant has demonstrated a reasonable probability that the result 

of the trial would have been different but for the introduction of the disputed photographs. 

At trial, the victim admitted that the scars depicted in the disputed photographs had been 

caused, at least in part, by surgical procedures he underwent, not just by the initial injuries from 

the stabbing incident. Furthermore, evidence of the extent of the victim’s injuries was not 
-13-

particularly important to the prosecutor’s case. Although the extent of those injuries might have 

been circumstantial evidence of defendant’s intent, there was overwhelming direct evidence of 

that intent here—i.e., defendant’s repeated threats against Vanreyendam’s life. Also, the disputed 

photographs were cumulative, given that the victim was permitted to show the jury his scars in 

person at trial, and defendant raises no claim of error in that regard. Thus, defendant has failed to 

carry his burden of showing the requisite prejudice for relief. In addition, given that the disputed 

photographs were cumulative and not particularly probative, counsel could have reasonably 

decided, as a matter of trial strategy, that the benefit to be gained by an objection was outweighed 

by the attendant danger of alienating the jury or highlighting the importance of the photographs in 

the minds of the jurors. See People v Reed, 449 Mich 375, 400; 535 NW2d 496 (1995).

Finally, defendant argues that his trial counsel performed deficiently by failing to move to 

withdraw from representing defendant following a breakdown in the attorney-client relationship 

of which defendant complained at the pretrial hearing. At that hearing, the trial court expressly 

denied defendant’s request to appoint substitute counsel, reasoning that there was “no basis for 

[counsel] to be discharged,” and concluding that defendant’s request was an attempt to delay trial 

and that defendant had failed to establish “that the attorney/client relationship ha[d] irretrievably 

broken down.” Defendant cites no record evidence indicating that, despite the trial court’s express 

denial of his motion to appoint substitute counsel, it nevertheless would have permitted defense 

counsel to withdraw from the representation had she filed her own motion requesting such relief. 

Therefore, defendant has failed to carry his burden of rebutting the strong presumption that counsel 

performed effectively. 

G. NONVISIBLE RESTRAINTS

In his Standard 4 brief, defendant argues that the trial court committed an abuse of 

discretion constituting plain error by requiring him to wear a “non-visible brace, put on the leg 

under the pants,” at trial in the presence of the jury. To preserve a due-process challenge 

concerning shackling, a defendant must object to the procedure in the trial court. People v 

Solomon, 220 Mich App 527, 532; 560 NW2d 651 (1996). Defendant raised no such objection 

below, and thus his unpreserved claim of error is subject to plain-error review. See Carines, 460 

Mich at 752-753. We perceive no plain error warranting reversal.

In Deck v Missouri, 544 US 622, 633; 125 S Ct 2007; 161 L Ed 2d 953 (2005), the United

States Supreme Court held, on due-process grounds, that

courts cannot routinely place defendants in shackles or other physical restraints 

visible to the jury during the penalty phase of a capital proceeding. The 

constitutional requirement, however, is not absolute. It permits a judge, in the 

exercise of his or her discretion, to take account of special circumstances, including 

security concerns, that may call for shackling. In so doing, it accommodates the 

important need to protect the courtroom and its occupants. But any such 

determination must be case specific; that is to say, it should reflect particular 

concerns, say, special security needs or escape risks, related to the defendant on 

trial. [Emphasis added.]
-14-

To begin with, although defendant cites nonbinding2authority extending Deck’s dueprocess protections to restraints in the form of “stun belts,”

3 which are evidently “worn underneath 

the prisoner’s clothing . . . not readily visible to the jury,” United States v Durham, 287 F3d 1297, 

1305 (CA 11, 2002), defendant cites no binding authority to support his argument that the rule of 

law from Deck applies to nonvisible restraints. Nor are we aware of any such authority. On that 

basis alone, defendant has failed to establish that the trial court committed a plain error by 

requiring him to wear nonvisible restraints. See Duray Dev, LLC v Perrin, 288 Mich App 143, 

162; 792 NW2d 749 (2010).

In any event, defendant’s argument also fails under plain-error review because it is 

unsupported by record evidence. Defendant argues that he was deprived of his due-process right 

to a fair trial because he was allegedly forced, at trial, to wear a “non-visible brace, put on the leg 

under the pants,” in the presence of the jury. Defendant alleges that, although the brace was not 

visible to the jurors, it “locks” and “makes a loud clicking sound” whenever the wearer stands up, 

causes the wearer “to have a severe limp,” and “requires the wearer to pull a lever in order to sit 

down, causing them to bend over to reach it.” Defendant further alleges that, in this case, it would 

have been “impossible” for the jurors not to notice the restraints in question because he “was forced 

to walk to and from the witness stand” in the jury’s presence, and he was also instructed to “step 

down during his testimony . . . to answer questions from the Prosecutor, and to demonstrate [his] 

actions” on the night of the stabbing while “mere feet away from the jury.”

Defendant’s argument rests entirely on the unsupported factual allegations in his Standard 

4 brief. He cites no record evidence indicating that he was required to wear a brace at all, let alone 

any evidence indicating that the brace in question had characteristics that would have made it 

noticeable to the jury. Thus, defendant has failed to satisfy any of the basic elements of the Carines

plain-error test. See People v Elston, 462 Mich 751, 762; 614 NW2d 595 (2000) (holding that 

appellants bear “the burden of furnishing the reviewing court with a record to verify the factual 

basis of any argument upon which reversal [i]s predicated”); Carines, 460 Mich at 763 (“It is the 

defendant rather than the Government who bears the burden of persuasion with respect to 

prejudice.”).

H. PHOTOGRAPHS

Finally, in his Standard 4 brief, defendant argues that the trial court committed an abuse of 

discretion constituting plain error by permitting the prosecutor to introduce the photographs 

depicting the victim’s postsurgical wounds. “To preserve an evidentiary issue for review, a party 

opposing the admission of evidence must object at trial and specify the same ground for objection 

that it asserts on appeal.” People v Thorpe, 504 Mich 230, 252; 934 NW2d 693 (2019). Because 

 

2

It is well-settled that, like all state courts, this Court is not bound by decisions of lower federal 

courts, though it may consider such decisions as persuasive precedent. See, e.g., People v Patton, 

285 Mich App 229, 234; 775 NW2d 610 (2009).

3 Specifically, defendant cites United States v Waagner, 104 Fed Appx 521, 526-527 (CA 6, 2004), 

United States v Durham, 287 F3d 1297, 1304 (CA 11, 2002), and Gonzalez v Pliler, 341 F3d 897, 

901 (CA 9, 2003).
-15-

defendant did not object to the introduction of the disputed photographs below, this unpreserved 

issue is “reviewed for plain error affecting the defendant’s substantial rights.” See People v 

Benton, 294 Mich App 191, 202; 817 NW2d 599 (2011).

Specifically, defendant argues that the trial court should have excluded the disputed 

photographs as cumulative or more unfairly prejudicial than probative under MRE 403, and he 

further argues that the court’s failure to do so undermined “the fairness, and the integrity of the 

trial.” Although the disputed photographs were arguably objectionable under MRE 403, we are 

not persuaded that the trial court committed plain error by failing to raise such an objection sua 

sponte, and we conclude that defendant has failed to demonstrate the requisite prejudice to receive 

relief under plain-error review in any event.

MRE 403 provides: “Although relevant, evidence may be excluded if its probative value 

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, waste of time, or needless presentation 

of cumulative evidence.” It bears emphasis that MRE 403 “does not prohibit prejudicial evidence; 

only evidence that is unfairly so. Evidence is unfairly prejudicial when there exists a danger that 

marginally probative evidence will be given undue or preemptive weight by the jury.” People v 

Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998). 

It is something of a close question whether the photographs should have been excluded 

under MRE 403. At trial, the victim admitted that the scars depicted in the disputed photographs 

had been caused, at least in part, by surgical procedures he underwent, not only by the initial 

injuries from the stabbing incident. Evidence of the extent of the victim’s injuries, however, was 

not particularly probative here. Although the extent of those injuries might have been 

circumstantial evidence of defendant’s intent, there was overwhelming direct evidence of that 

intent—i.e., defendant’s repeated threats against Vanreyendam’s life. And the disputed 

photographs were cumulative, given that the victim was permitted to show the jury his scars in 

person at trial. After carefully reviewing the disputed photographs in light of the record evidence 

at trial, we are inclined to believe that their limited probative value was arguably outweighed by 

the danger of unfair prejudice and that, in any event, they could have been excluded as needlessly 

cumulative.

Even so, we are not persuaded that the trial court committed a plain (i.e., clear or obvious) 

abuse of discretion in this regard, given that the court was never actually called upon to exercise

any discretion concerning this issue. “[T]here is something unseemly about telling a lower court 

it was wrong when it never was presented with the opportunity to be right.” Napier v Jacobs, 429 

Mich 222, 228-229; 414 NW2d 862 (1987) (cleaned up). “A criminal defendant is entitled to a 

neutral and detached magistrate” at trial, Jackson, 292 Mich App at 597 (cleaned up), and “in our 

adversarial system, the litigants frame the issues and present them to the court,” Barnard Mfg Co, 

Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 383; 775 NW2d 618 (2009). 

Furthermore, it is axiomatic that there are times when defense counsel may, for valid strategic 

reasons, choose not to raise a meritorious objection to evidence introduced by the prosecution. 

See, e.g., Reed, 449 Mich at 400.

As noted, the disputed photographs were cumulative and not particularly probative. 

Accordingly, an objection to their introduction might well have underscored their significance in 
-16-

the minds of the jurors—or alienated the jury—with little potential benefit for the defense. 

Moreover, given the victim’s testimony that the scars depicted in the photographs had been caused, 

at least in part, by surgery—not by defendant’s conduct—defense counsel might have reasonably 

believed that the risks of objecting to such evidence outweighed any potential benefit that the 

defense might reap. Given that a reasonable defense attorney might have made a legitimate 

strategic decision not to object, we cannot conclude that the trial court plainly erred by failing to 

nevertheless raise such an objection on its own initiative, thereby superimposing the court’s 

strategic views over those of defense counsel.4 

Regardless, even assuming arguendo that the trial court erred by not excluding sua sponte

the disputed photographs under MRE 403, defendant has failed to carry his burden of 

demonstrating the requisite prejudice under the Carines plain-error test. Again, the disputed 

photographs were cumulative and not particularly probative, and the evidence of defendant’s guilt 

was overwhelming. For those reasons, we are not persuaded that the introduction of the disputed 

photographs was outcome-determinative. See People v Rodriquez, 216 Mich App 329, 332; 549 

NW2d 359 (1996) (“Because the . . . testimony was mere cumulative evidence, we hold that the 

admission of this testimony did not prejudice defendant.”).

Affirmed.

/s/ Michael J. Riordan

/s/ Jane E. Markey

/s/ Brock A. Swartzle

 

4 We are aware that reviewing courts must be cautious not to conflate the plain-error and 

ineffective-assistance analyses, People v Randolph, 502 Mich 1, 21; 917 NW2d 249 (2018), and 

we do not do so here. Rather, we merely recognize that, when a trial court raises an objection for 

the defense sua sponte to prevent what the court perceives as plain error, it may inadvertently 

undermine defense counsel’s valid strategic decision not to raise such an objection.