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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

May 19, 2016 

v No. 326737 

Muskegon Circuit Court 

BRODERICK JASON SANDERS, LC No. 14-065281-FH 

 Defendant-Appellant. 

Before: O’BRIEN, P.J., and K. F. KELLY and FORT HOOD, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury trial convictions of carrying a concealed weapon 

(CCW), MCL 750.277; two counts of assault with a dangerous weapon (felonious assault), MCL 

750.82; two counts of assaulting, resisting, or obstructing a police officer, MCL 750.81d(1); and 

two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 

750.227b(1). Defendant was sentenced to 14 months to 5 years’ imprisonment for CCW, 14 

months to 4 years’ imprisonment for each count of felonious assault, 14 months to 2 years’ 

imprisonment for each count of assaulting, resisting, or obstructing a police officer, and two 

years’ imprisonment for each count of felony-firearm. We affirm. 

 Defendant first argues that he was denied the effective assistance of counsel. We 

disagree. Because defendant failed to make a motion for a new trial or an evidentiary hearing 

with the trial court, his claim is unpreserved. People v Heft, 299 Mich App 69, 80; 829 NW2d 

266 (2012). When an ineffective assistance of counsel claim is unpreserved, “this Court’s 

review is limited to mistakes apparent from the record.” Id. “To demonstrate ineffective 

assistance of counsel, a defendant must show that his or her attorney’s performance fell below an 

objective standard of reasonableness under prevailing professional norms and that this 

performance caused him or her prejudice.” People v Nix, 301 Mich App 195, 207; 836 NW2d 

224 (2013), citing People v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676 (2011). “To 

demonstrate prejudice, a defendant must show the probability that, but for counsel’s errors, the 

result of the proceedings would have been different.” Nix, 301 Mich App at 207. It is presumed 

that trial counsel used effective trial strategy, and a defendant has a heavy burden to overcome 

this presumption. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009). 

 Defendant first claims that defense counsel was ineffective at trial for failing to object to 

the lack of expert qualification of Detective Matt Kolkema for his testimony. We disagree. 
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Specifically, defendant complains of Detective Kolkema’s testimony relating to a hooded 

sweatshirt and bullet casing. Initially, we note that we agree with the prosecution that the 

testimony from Detective Kolkema regarding the hooded sweatshirt and caliber of the bullet 

casing did not require expert testimony.1

 Regarding the hooded sweatshirt, Detective Kolkema 

stated that his testimony was based primarily on his observations of the sweatshirt itself. 

Similarly, the caliber of the bullet was imprinted on the casing that was found on defendant’s 

person. Lay witness testimony may be rationally based on the perception of the witness. MRE 

701. Thus, we are inclined to agree with the prosecution that Detective Kolkema’s testimony did 

not require expert qualification. 

 However, even assuming that all or part of Detective Kolkema’s testimony required 

expert qualification, we reject defendant’s claim. Defendant fails to overcome the presumption 

that defense counsel’s decision not to challenge Detective Kolkema’s expert qualifications was 

sound trial strategy. Payne, 285 Mich App at 190. This Court has held that the decision whether 

to object to the qualifications of an expert witness is a matter of trial strategy. See People v 

Cicotte, 133 Mich App 630, 637; 349 NW2d 167 (1984). Here, trial counsel could have 

strategically chosen to refrain from objecting so the jury did not hear about Detective Kolkema’s 

qualifications and to avoid having the trial court formally state that he was an expert. Such a 

strategy is consistent with the record, which was noticeably sparse regarding Detective 

Kolkema’s 23-year police background. Indeed, defense counsel could have reasonably chosen 

not to object to the detective’s likely admissible expert testimony in order to avoid the jury 

hearing lengthy testimony regarding Detective Kolkema’s background and experience. 

 Second, defendant claims that defense counsel was ineffective at trial for failing to obtain 

an eyewitness identification expert where defendant’s defense theory was that he was 

misidentified as the perpetrator of the shooting. Initially, we note that defendant has not 

identified the existence of an expert who would have testified for him or what such an expert 

might say to change the outcome of the case, and, thus fails to establish the factual predicate for 

his claim. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). Moreover, the decision 

“to call or question witnesses is presumed to be [a] matter[] of trial strategy” and will only 

constitute ineffective assistance when it deprives defendant of a substantial defense. People v 

Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Again, defendant has not overcome the 

presumption of trial strategy. Defense counsel cross-examined the victims in an attempt to show 

that their identification of defendant was suspect, and presented testimony from a witness to 

show that two people other than defendant were running away and could have been the 

individual that the victims chased. Defense counsel “may reasonably have been concerned that 

the jury would react negatively to perhaps lengthy expert testimony that it may have regarded as 

only stating the obvious: memories and perceptions are sometimes inaccurate.” People v 

Cooper, 236 Mich App 643, 658; 601 NW2d 409 (1999). Because defendant cannot overcome 

the presumption of trial strategy, we reject this claim of error. 

 

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 Defendant also cites Detective Kolkema’s explanation of a bullet casing. However, defendant 

does not allege that this testimony, specifically, affected the outcome of defendant’s trial, 

although he does argue that it was expert testimony. 
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Third, defendant claims that defense counsel was ineffective for failing to examine the 

physical evidence—specifically, the hooded sweatshirt with the bullet holes in it, the bullet 

casing, and sandwich baggies. The prosecutor noted on the record that defense counsel did not 

set up an appointment to examine the physical evidence before trial. In providing objectively 

reasonable representation, defense counsel at trial “has a duty to make reasonable investigations 

or to make a reasonable decision that makes particular investigations unnecessary.” People v 

Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012) (citation omitted). 

Regarding the bullet casing, we do not agree that defense counsel’s failure to examine the 

casing before trial fell below an objective standard of reasonableness. The police report stated 

that it was the casing for a .38 caliber bullet. Apparently, defendant did not express any 

objection to that description, and defendant’s mother testified that defendant had a .38 caliber 

bullet casing in his possession for her. Thus, there does not appear to have been any concern 

regarding the caliber of the bullet casing so as to alert defense counsel there may be a reason to 

view the casing. Similarly, defendant claims that defense counsel should have viewed the 

sandwich baggies found on defendant and observed that one of the baggies contained a green 

leafy substance. Again, defendant could have (and should have) alerted defense counsel to the 

necessity to view the sandwich baggies for possible drug paraphernalia before trial as they 

belonged to him and were found on his person. Finally, regarding the hooded sweatshirt, 

defendant argues that counsel should have viewed it before trial. Had she done so, defendant 

conjectures, she would have realized that the bullet hole was on the right side of the sweatshirt, 

which defendant claims infers that the shooter fired with his right hand. However, there was 

nothing to suggest that the location of the hole on the sweatshirt had any connection to the rightor left handedness of the perpetrator. 

In addition, we are not convinced that defendant can show a reasonable probability that 

the result of trial would have been different but for counsel’s failure to investigate the physical 

evidence. The evidence that defendant was the shooter was very strong—the two victims of the 

felonious assault testified that they were one hundred percent certain that defendant was the 

person who shot at them, and one of the victims and a police officer testified that they saw 

defendant put the sweatshirt with the bullet holes in a garbage can shortly after the shooting. 

Examination of the physical evidence before trial would not have revealed any information to 

challenge this very damaging testimony. Accordingly, defendant’s claim fails. 

Fourth, defendant claims that defense counsel was ineffective because she elicited 

irrelevant testimony about the sandwich baggies found on defendant, thereby opening the door to 

highly prejudicial testimony by Detective Kolkema about how those baggies can be used for 

transporting drugs. However, defendant mischaracterizes the record. On cross-examination, the 

prosecutor elicited testimony that defendant, who claimed to be on his way to the store, had $100 

on his person at the time of his arrest. On re-direct examination, defense counsel asked 

defendant where the money was from, and defendant responded that he received it from cutting 

grass and his allowance. On re-cross examination, the prosecutor questioned defendant further 

regarding the money, ultimately leading to the questioning regarding the sandwich baggies, and, 

later, Detective Kolkema’s testimony. Thus, defense counsel did not elicit testimony regarding 

the sandwich baggies. To the extent that defense counsel’s questioning defendant regarding the 

$100 led to an inquiry about the baggies, defendant cannot overcome the presumption of trial 

strategy. Defense counsel may have reasonably decided that defendant should explain to the jury 
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why defendant, aged 19 years old, would have $100 on his person. This is especially true given 

defendant’s testimony on cross-examination that he was on his way to the store to purchase only 

one liter of Sprite and cigarillos. Defense counsel may have felt the need to explain why 

defendant would have a large amount of money on him at that time. Moreover, even assuming 

defense counsel’s performance was deficient, defendant cannot show that a different result 

would have been probable but for the error. The baggies were only a peripheral issue in this 

case—defendant was not charged with or convicted of any drug offense—and as previously 

discussed, the evidence against defendant was very strong. Accordingly, we reject defendant’s 

claim of error. 

Fifth, defendant claims that defense counsel was ineffective for failing to ask for a 

continuance or a remand for a preliminary examination when the trial court allowed the 

prosecution to amend the information. On the day of trial, the prosecution moved to amend the 

information to add two counts of felony-firearm and an additional count of resisting or 

obstructing. The trial court allowed the amendment over defense counsel’s objection. 

According to defendant, if defense counsel had requested a continuance or a remand, she would 

have properly preserved for appellate review the issue of adding charges on the day of trial, and 

she would have had more time to prepare to properly defend the felony-firearm charges. 

However, defense counsel properly preserved the issue by objecting to the additional charges. 

People v Unger, 278 Mich App 210, 221; 749 NW2d 272 (2008). Furthermore, defendant does 

not identify what more defense counsel could have or should have done to better prepare the 

defense. Carbin, 463 Mich at 600. Finally, no continuance may be granted by the trial court in a 

criminal case except for good cause shown. MCL 768.2. Because defense counsel could not 

show good cause for a continuance, a request for a continuance would have been meritless, and 

counsel cannot be found ineffective for failing to raise meritless issues. People v Ericksen, 288 

Mich App 192, 201; 793 NW2d 120 (2010). 

 Defendant also argues that reversal is required because of the cumulative effect of the 

alleged errors in this case. Any one error standing alone may not justify reversal, but the 

cumulative effect of several errors can cause sufficient prejudice to warrant reversal. People v 

Gaines, 306 Mich App 289, 321-322; 856 NW2d 222 (2014). To prevail, the defendant must 

establish actual errors at trial, and the aggregate of the actual errors must lead to unfair prejudice. 

See People v LeBlanc, 465 Mich 575, 591 n 12; 640 NW2d 246 (2002). Because defendant has 

failed to demonstrate aggregate errors that cumulatively deprived him of fair trial, this claim of 

error must fail. 

Defendant next argues that the trial court erred by allowing the prosecution to amend the 

information on the day of trial. We disagree. This Court reviews the trial court’s decision to 

grant or deny a motion to amend an information for an abuse of discretion. People v McGee, 258 

Mich App 683, 686-687; 672 NW2d 191 (2003). “An abuse of discretion occurs when the trial 

court reaches a result that is outside the range of principled outcomes.” People v Benton, 294 

Mich App 191, 195; 817 NW2d 599 (2011). “Both MCL 767.76 and MCR 6.112(H) authorize a 

trial court to amend an information before, during, or after trial.” McGee, 258 Mich App at 686. 

Although MCL 767.76 does not authorize amendment of the information for the purpose of 

adding a new offense, id. at 688, MCR 6.112(H) does allow the information to be amended to 

charge a new crime or additional offense, as long as the addition of the new crime does not 

unfairly surprise or prejudice the defendant. Id. at 689. To the extent that MCR 6.112(H) is 
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inconsistent with MCL 767.76, as a rule of procedure MCR 6.112(H) supersedes MCL 767.76. 

Id. 

In this case, the original information charged defendant with carrying a concealed pistol, 

two counts of felonious assault with a pistol, and resisting or obstructing Officer Joe Williams 

“and/or” Officer John Baker. The amended information added two counts of felony-firearm—

one for each charge of felonious assault—and split the resisting and obstructing charge into two 

separate counts. Defendant cannot show that he was unfairly surprised or prejudiced by this 

amendment. Defendant was already prepared to defend against charges of assaulting two people 

with a pistol, and defending against the felony-firearm counts required no new preparation, 

strategy, or evidence, because defendant’s theory of the case was that he was not the person with 

the gun. Thus, defendant cannot show that the trial court abused its discretion by allowing the 

information to be amended to add two counts of felony-firearm. See People v Fortson, 202 Mich 

App 13, 15; 507 NW2d 763 (1993) (finding that the trial court trial properly allowed the 

prosecutor to amend the information to add a felony-firearm count after an original charge of 

open murder). Similarly, defendant cannot show he was unfairly surprised or prejudiced by the 

additional count of resisting or obstructing. The defense was already prepared to defend against 

a resisting or obstructing charge as to Officer Williams “and/or” Officer Baker—the separation 

of that one combined count into two separate counts did nothing to change the way that the 

defense could have prepared to defend against them. Thus, there was no unfair surprise or 

prejudice, and the trial court did not abuse its discretion by allowing the amendment of the 

information. McGee, 258 Mich App at 692; MCR 6.112(H). 

Affirmed.

/s/ Colleen A. O’Brien 

/s/ Kirsten Frank Kelly 

/s/ Karen M. Fort Hood