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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED September 27, 2016

v No. 327489 Wayne Circuit Court TRAVIS LOUIS GRIMES, LC No. 14-008337-FC

Defendant-Appellant.

Before: B ORRELLO , P.J., and M ARKEY and R IORDAN , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of fi rst-degree premeditated murder, MCL 750.316, and possession of a firearm during the com mission of a felony (“felonyfirearm”), second offense, MCL 750.227b. He was sentenced to l ife imprisonment without parole for his first-degree murder conviction and five years’ i mprisonment for his felony-firearm conviction. We affirm.

I. FACTUAL BACKGROUND

This matter arises out of a dispute between Marquis Crooks, de fendant, and Starleshay Ballard (defendant’s girlfriend) , which resulted in Marquis’s d eath on September 9, 2014. A number of Marquis’ family members and friends witnessed the eve nts leading up to the murder, including his two sisters, Latrice Clark and Kristina Clark; hi s brother, Julius Crooks; and two of his friends, Carmela Allen and Ramon Ford. Ballard’s daughter was also present during the incident.

Although the eyewitnesses provide d slightly varying descriptio ns of the events, it was generally agreed that defendant a nd Marquis got into a heated a rgument on September 8, 2014. The next day, Marquis, Julius, Kristina, Ballard, and Ballard’s daughter were involved in a confrontation related to the p revious argument. It was undispu ted that defendant stepped out of his house during the confrontati on and shot Marquis, causing hi s death.

The key facts in dispute at trial, however, were (1) whether Ma rquis was armed with a rifle at the time that he was shot and (2) who instigated the S eptember 9, 2014 confrontation. Marquis’ friends and family membe rs all testified that he was n ot armed during the incident, but Ballard and defendant testified th at Marquis was armed with a r ifle and that he pointed it toward them just before the shooting. Allen, Ford, and Julius asserte d that Ballard began shouting at-2- Marquis before the shooting, with out any justification, while B allard testified that a group of eight people, including Marqui s, surrounded her and wanted to f ight.

II. RIGHT TO PRESENT A DEFENSE

On appeal, defendant claims that his constitutional right to p resent a defense was violated when the trial court made statements during the trial that had the effect of excluding testimony from Ballard’s daughter based on the fact that she was not pres ent in court on the day that the prosecution concluded its cas e-in-chief. We disagree.

A. STANDARD OF REVIEW

Because defendant failed to pre serve this claim by objecting to the trial court’s statements that allegedly violated his right to present a defense, this is sue is unpreserved and reviewed for plain error affecting su bstantial rights. See People v Bosca , 310 Mich App 1, 46; 871 NW2d 307 (2015); People v Coy , 258 Mich App 1, 12; 669 NW2d 831 (2003), citing People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). A defendant must show that (1) an error occurred, (2) the error was clear or obvious, and (3) “the plain error affect ed [the defendant’s] substantial rights,” which “generally require s a showing of prejudice, i.e. , that the error affected the outcome of the lower court proceedings.” Carines , 460 Mich at 763. Even if a defendant establishes a plain error that affected his s ubstantial rights, “[r]eversal i s warranted only when the plain, forfeited error resulted in the conviction of an actually innoc ent defendant or when an error seriously affect[ed] the fairnes s, integrity or public reputati on of judicial proceedings independent of the defendant’s innocence.” Id . at 763-764 (quotation marks and citation omitted; second alteration in original).

B. ANALYSIS

Before trial, the defense served subpoenas on both Ballard and her daughter. Then, after the prosecution concluded its case-in-chief, defense counsel no tified the trial court that Ballard’s daughter was not present in court that day and that he believed , based on his conversation with Ballard, that she did not want her daughter to testify. Subseq uently, the trial court had the following discussion with defense counsel and Ballard, which de fendant identifies as the basis of his claim on appeal:

The Court: You are desirous of giving testimony?

Ms. Ballard: Yes, sir.

The Court: Okay, very good. And your daughter has as well been requested to give testimony on behalf of [defendant]. Are you prepared to produce her to give testimony?

Ms. Ballard: Not today. She’s in school. I brought her the other day. Today I was told that I only needed to be here.

The Court: Today is it. Today is it. Ok ay, very good. [Defense counse l], who do you wish to call first, your c lient or Ms. Ballard?-3- [ Defense Counsel ] : Ms. Ballard.

From this exchange, defendant der ives the following argument wi th regard to how the trial “court’s comments . . . effectively denied defendant the opportunity to present the daughter as a witness”:

It was clear the court was concerned with moving the case alon g, forcing [the] defense to present the witnesses that were present and strongly implying [that the] defense would not be permitted to call any other wit nesses who were not present. It was clear from the court’s position that since [Ba llard’s daughter] was not present on that day, it was not going to provide the defens e the opportunity to have her testify. At the end of the day, defendant was forced to rest without presenting to the jury any further evidence to support his posi tion.

Defendant claims that this purported error was not harmless bec ause testimony provided by Ballard’s daughter would have cor roborated his defense theory, i.e. , that he shot Marquis in selfdefense or in defense of B allard and her daughter.

“There is no doubt that . . . the Constitution guarantees crimi nal defendants a meaningful opportunity to present a complete defense.” People v King , 297 Mich App 465, 473; 824 NW2d 258 (2012) (quotation marks and citation omitted). This guaran tee includes a defendant’s right to call witnesses in suppor t of his or her defense. People v Daniels , 311 Mich App 257, 265; 874 NW2d 732 (2015). However, the record provides no support for d efendant’s claim that the trial court violated his rights. Most significantly, defendant did n ot request an adjournment or a continuance in order to secure t he presence of Ballard’s daught er, or otherwise request the presentation of testimony from Ballard’s daughter during the tr ial. As a result, the trial court made no ruling related to her testimony. In the absence of a r uling by the lower court, this Court has nothing to review on appeal. People v Buie , 491 Mich 294, 311; 817 NW2d 33 (2012). Accordingly, we find no basis for concluding that the trial cou rt violated defendant’s constitutional rightto call witnesses.

To the extent that defendant’s argument may be understood as c ontending that the trial court effectively denied him the opportunity to seek an adjourn ment or continuance in order to present Ballard’s daughter as a witness, we reject defendant’s claim, as there is nothing in the record to support such a contention. A defendant’s right to pr esent a defense “is not absolute,” and “[a] defendant must complywith established rules of proced ure and evidence designed to assure both fairness and reliabili ty in the ascertainment of gu ilt and innocence.” Daniels , 311 Mich App at 265 (quotation marks and citation omitted).

“MCR 2.503 is the established rule of procedure that governs ad journments, particularly to secure the testimony of a witness.” Id . MCR 2.503 provides, in relevant part:

(B) Motion or Stipulat ion for Adjournment.

(1) Unless the court allows otherwise, a request for an adjourn ment must be by motion or stipulation made in wri ting or orally in open court b ased on good cause.

* * *-4- (C) Absence of Witness or Evidence.

(1) A motion to adjourn a proceeding because of the unavailabil ity of a witness or evidence must be made as soon as possible after ascertaining th e facts.

(2) An adjournment may be granted on the ground of unavailabili ty of a witness or evidence only if the court fi nds that the evidence is materi al and that diligent efforts have been made to produce the witness or evidence.

Thus, under MCR 2.503(C),

to invoke the trial court’s discr etion to grant a continuance o r adjournment, a defendant must show both good cause and diligence. “Good cause ” factors include “whether defendant (1) asserted a constitutional right, (2) had a legitimate reason for asserting the right, (3) had been negligent, and (4) had requested previous adjournments.” Even with good cause and due diligence , the trial court’s denial of a request for an adjournment or continuance i s not grounds for reversal unless the defendant d emonstrates prejudice as a resul t of the abuse of discretion. [ People v Coy , 258 Mich App 1, 18-19; 669 NW2d 831 (2003) (citations omitted). 1 ]

Defendant never requested an adjournment or a continuance in ac cordance with MCR 2.503(B)(1), and the defense rest ed its case wi thout any indica tion that it still wished to call Ballard’s daughter as a witness. Further, defendant made no at tempt in the trial court, and he makes no attempt on appeal, to demonstrate good cause for an ad journment or due diligence in attempting to secure her presence, and the record undermines su ch a showing. See MCR 2.503(C)(2); Coy , 258 Mich App at 18-19. It is clear that defendant was well a ware that testimony from Ballard’s daughter could have been valuable to t he defense, as he had first-hand knowledge that she was an eyewitn ess to the shooting and the ev ents surrounding it. He was in regular contact with Ballard, speaking to her by phone numerous times during his pretrial incarceration. However, he faile d to take steps to ensure that Ballard’s daughter would be available to testify at trial, even after he was put on notice at the April 3, 2015 final conference that Ballard had ini tially refused service of a subpoena and ma y not produce her daughter at the trial, and the trial court speci fically advised defendant to ge t in touch with Ballard and her daughter if he wished to secure their presence at trial.

Moreover, even if we assume, arguendo, that the trial court’s s tatements amounted to a refusal to allow the defense t o call Ballard’s daughter as a wi tness because of her absence, such a refusal would not have violated d efendant’s constitutional righ t to present a defense. As mentioned above, defendant relied on a theory of self-defense a nd defense of others at trial. In support of this defense, he tes tified regarding the actions of Marquis and his family and alleged

1 See also MCL 768.2 (“No adjournments, continuances or delays o f criminal causes shall be granted by any court except for good cause shown in the manner provided by law for adjournments, continuances and de lays in the trial of civil cau ses in courts of record[.]”).-5- that he only shot Marquis in orde r to protect himself, Ballard, and Ballard’s daughter. Ballard also provided testimony concerning the circumstances leading up to the shooting that supported defendant’s theory of self-defens e and defense of others. Beca use defendant was, in fact, able to present other evidence that supported his defense theory, his c onstitutional rights were not violated. See People v Mesik (On Reconsideration) , 285 Mich App 535, 537-538; 775 NW2d 857 (2009); People v Herndon , 246 Mich App 371, 411; 633 NW2d 376 (2001). Additionally, although defendant speculates on appeal that testimony from Bal lard’s daughter would have bolstered his defense, there is simply no evidence in the recor d that Ballard’s daughter would have corroborated his version of the events if she had testifie d at trial.

Defendant has failed to demonstrate that the trial court erred, that the trial court’s alleged error affected the outcome of the trial, and, therefore, that t he trial court committed a plain error affecting his substantial rights. See Carines , 460 Mich at 763-764.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

In conjunction with his first c laim, defendant argues that def ense counsel provided ineffective assistance when he rested his case at the conclusio n of defendant’s testimony instead of requesting a continuance or adjournment of the trial so that Ballard’s daughter could be produced the following day. We disagree.

A. STANDARD OF REVIE W AND APPLICABLE LAW

Because defendant did not move for a new trial or a Ginther 2 hearing in the trial court, our review is limited to mistakes apparent from the record. People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009); People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008). “A claim of ineffective assistance of counsel is a mixed question of law and fact. A trial court’s findings of fact, if any, are revi ewed for clear error, and thi s Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo.” Petri , 279 Mich App at 410, citing People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002).

The United States and Michigan Constitutions guarantee a crimi nal defendant’s right to effective assistance of counsel . US Const, Am VI; Const 1963, art 1, § 20. In order to prove that defense counsel provided ineffective assistance, a defendant mu st demonstrate that (1) “ ‘counsel’s representation fell be low an objective standard of r easonableness,’ ” a nd (2) defendant was prejudiced, i.e. , “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ’ ” People v Vaughn , 491 Mich 642, 669-671; 821 NW2d 288 (2012), quoting Strickland v Washington , 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (19 84). “ ‘A reasonable probabil ity is a probability sufficient to undermine confidence in the outcome.’ ” People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001), quoting Strickland , 446 US at 694. “A defendant must also show that the result that did occur was fundamentally unfair or unreliable.” People v Lockett , 295 Mich App 165, 187; 814 NW2d 295 (2012).

2 People v Ginther , 390 Mich 436, 443; 212 NW2d 922 (1973).-6- “Effective assistance of counsel is presumed,” and a defendant bears a heavy burden of proving otherwise. Petri , 279 Mich App at 410. The defendant must “overcome the strong presumption that counsel’s performance was born from a sound tr ial strategy.” People v Trakhtenberg , 493 Mich 38, 52; 826 NW2d 136 (2012). “Because the defendant bears the burden of demonstrating both defi cient performance and prejudic e, the defendant necessarily bears the burden of establishing the factual predicate for his claim.” Carbin , 463 Mich at 600.

B. ANALYSIS

Generally, “[d]ecisions regardi ng whether to call or question witnesses are presumed to be matters of trial strategy. [T]he failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the def endant of a substantial defens e.” People v Russell , 297 Mich App 707, 716; 825 NW2d 623 (2012) (quotation marks and citations omitted; second alteration in original). As discussed above, defendant had the opportunity t o present evidence that, if believed by the jury, substantiated his defense theory. Thus, defense counsel’s decision to rest his case, as well as his related failure to request an adjournm ent or continuance in order to call Ballard’s daughter as a witness, appears to have been part of h is trial strategy and does not constitute ineffective assistance of counsel.

Likewise, defendant has failed to establish prejudice. See Vaughn , 491 Mich at 669-671. As previously mentioned, defendant provides no argument on appe al that there was a reasonable probability that the trial court would have granted an adjournm ent or a continuance in accordance with MCR 2.503(C). See also Coy , 258 Mich App at 18-19. Most significantly, there is nothing in the record showing that the defense made di ligent efforts to produce Ballard’s daughter, see MCR 2.503(C)(2), or contradicting the significant likelihood that defense negligence played a part in her absence, see Coy , 258 Mich App at 18 (listing “ ‘good cause’ factors”). 3

Furthermore, it is not apparent that it would have been necessa ry for defense counsel to request an adjournment or a continuance in order to present tes timony from Ballard’s daughter the following day. The court concluded the trial proceedings a t 3:59 p.m. on April 13, 2015, and at 3:40 p.m. on April 14, 2015, and defendant concluded his tes timony at approximately the same time on April 15, 2015. When defendant left the stand, th e trial court instructed defense counsel to call his next witness, but defense counsel decided t o rest his case. Given the trial court’s usual end time for the trial proceedings, it appears un likely that a formal adjournment or continuance would have been requi red in order for the defense t o present testimony from additional witnesses, includi ng Ballad’s daughter, the next day

. Additionally, as defendant acknow ledges in his brief on appeal, the witnesses provided conflicting testimony regarding whether Marquis was armed and p osed a threat to defendant, Ballard, and her daughter at the time of the shooting. Marquis ’ family and friends testified that

3 It is noteworthy that it seems highly probable, based on Balla rd’s statements on the record, that instructions from the defense ma y have influenced her decision to send her daughter to school on the third day of trial.-7- he was unarmed, while defendant and Ballard both testified that Marquis pointed a rifle toward them before defendant shot him. Accordingly, the discrepancy b etween the witnesses’ testimony was readily apparent to the ju ry, and defendant offers nothing more than speculation to support his claim that cumulative tes timony from Ballard’s daughter wou ld have buttressed his defense and influenced the jury’s credib ility determinations. Further, the record suggests that the jury may have attributed little weight to testimony from Ballard’s d aughter, as her credibility already had been indirectly impeached by evidence of defendant’s phone calls with Ballard, during which he stated that they all needed to be “on the same page” a nd instructed Ballard to talk to her daughter.

Thus, defendant has failed to demonstrate that defense counsel ’s performance constituted ineffective assistance of counsel. See Vaughn , 491 Mich at 669-671.

IV. CONCLUSION

Defendant has failed to estab lish that any of his claims on ap peal warrant relief.

Affirmed.

/s/ Stephen L. Borrello /s/ Jane E. Markey /s/ Michael J. Riordan