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UNPUBLISHED

February 25, 2020

v No. 344225

Wayne Circuit Court

DIONTE ODELL LAVINGTON, LC No. 17-006791-01-FC

Defendant-Appellant.

Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and TUKEL, JJ. 

PER CURIAM. 

Defendant appeals as of right his bench trial convictions for first-degree murder, MCL 

750.316, being a felon in possession of a firearm (felon-in-possession), MCL 750.224f, and 

possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL 

750.227b. Defendant was sentenced to life in prison without parole for first-degree murder, 38 

months to 5 years’ imprisonment for felon-in-possession, and five years’ imprisonment for felonyfirearm, second offense. We affirm. 

I. BACKGROUND 

This case arises out of the death of the victim, CL, on July 19, 2017, in Detroit, Michigan. 

Several witnesses testified that they saw defendant and CL together at the location where CL was 

shot. They either saw defendant shoot CL; or they heard gunshots, following which CL was found 

to have been shot. The witnesses provided somewhat differing accounts, such as what other 

individuals, if any, were present at the scene, and minor differences in defendant’s attire. 

Defendant testified that he was not present at the shooting, and instead he was seated on the porch 

of a house at least a block away with “Connie,” “Anthony,” and “KB1.” None of those three 

 

1 We use initials in this opinion to refer to the victim and to eyewitnesses, but “KB” was never 

identified in the record beyond his initials. 
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individuals were further identified, although Connie and KB were apparently also known to some 

of the other witnesses. 

AI testified that he was a friend of CL, and his testimony implied that he was familiar with 

defendant. He and CL met with defendant to purchase marijuana from defendant. Defendant and 

CL got into an argument regarding a small amount of money that CL owed defendant. The 

argument seemed to escalate and deescalate, sometimes appearing “heated” and sometimes not. 

Defendant appeared drunk and high on drugs, and he spoke to CL in an aggressive manner. AI 

left defendant and CL to go to a gas station and heard gunshots. When AI returned, defendant was 

gone and CL was lying on the ground, having been shot several times. AI believed defendant had 

“probably” been wearing a white t-shirt, black pants, and a black baseball hat. AI testified that he 

observed “a couple people in the area” after CL was shot, but nobody with whom he was familiar. 

DB testified that he knew defendant and KB, but at the time of the shooting, he did not 

know who CL was. DB was driving down the street when he saw the person he later learned was

CL standing alone. He then also saw defendant and KB approaching. Defendant flagged DB 

down, and DB stopped. Defendant then approached CL, and DB saw defendant standing less than 

a foot away from CL. DB heard several gunshots and drove away. DB did not observe defendant 

actually in possession of a gun. DB believed that defendant was wearing black pants, a black shirt 

or hoody, and a black baseball hat. Approximately 45 minutes later, he encountered defendant 

while walking, and defendant instructed DB to tell anyone who asked for “his alibi” that defendant 

had been at Connie’s house all night. 

MD testified that he knew both defendant and CL. On the night of the shooting, MD and 

two friends were sitting on a car in the vicinity of the shooting. MD testified that CL was behind 

them, and MD believed CL was “hustling.” He observed defendant “and a few other guys,” one 

of whom was KB, approach CL. MD initially believed they were “just talking,” until defendant 

told MD and his friends to leave. As they complied, MD observed defendant produce a pistol and 

start shooting at CL. MD recalled defendant wearing all black, other than red shoes with gray 

soles. 

Defendant testified that he had been with Connie, KB, and Anthony on a porch elsewhere. 

He testified that he heard gunshots, but he did not see the shooting. CL’s death was ruled a

homicide, caused by six gunshot wounds. The gun was recovered from a large community 

dumpster behind Connie’s house, inside a grocery bag also containing “gym shoes and some 

bullets.” The gun was tested for DNA. No usable DNA could be extracted from the trigger, but 

three DNA profiles were found on the grip, one of which was a match to defendant. Both DB and 

MD testified that they had seen defendant shooting a gun in the air earlier in the day, which they 

regarded as not unusual behavior for defendant. The parties stipulated that defendant was 

ineligible to possess a gun at the time of the shooting due to a prior felony conviction. The trial 

court found defendant guilty as noted above. 

II. RES GESTAE WITNESS 

Defendant argues that his due-process rights were violated when the prosecution failed to 

obtain the presence of, and give the defense notice of, KB, a res gestae witness. We disagree.

Because this issue is essentially a question of statutory interpretation, i.e., the nature of the 
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prosecutor’s legal duty, our review is de novo. People v Carlson, 466 Mich 130, 136; 644 NW2d 

704 (2002). 

“A res gestae witness is one who is present at the scene of the alleged crime, at the time of 

the alleged crime, or one who had occasion to observe the surrounding events and circumstances.” 

People v Dyer, 425 Mich 572, 577 n 4; 390 NW2d 645 (1986). “[T]he prosecutor has a duty to 

attach to the information a list of all witnesses the prosecutor might call at trial and of all known 

res gestae witnesses, to update the list as additional witnesses became known, and to provide to 

the defendant a list of witnesses the prosecution intended to call at trial.” People v Koonce, 466 

Mich 515, 520; 648 NW2d 153 (2002), citing MCL 767.40a(1), (2), and (3). “The prosecution is 

not required to produce at trial the witnesses listed with the information; but, under MCL 

767.40a(2), the prosecution has a continuing duty to disclose further res gestae witnesses as they 

become known.” People v Everett, 318 Mich App 511, 520-521; 899 NW2d 94 (2017) (citation 

and punctuation omitted). Moreover, “the prosecutor is now compelled to render reasonable 

assistance in locating and serving process upon witnesses upon request of the defendant.” Koonce, 

466 Mich at 521, citing MCL 767.40a(5) (footnote omitted). 

Importantly, “[t]here is no requirement to exercise due diligence to discover the names of 

witnesses.” People v Gadomski, 232 Mich App 24, 36; 592 NW2d 75 (1998). “[T]he purpose of 

the ‘listing’ requirement is merely to notify the defendant of the witness’ existence and res gestae 

status.” Id. (quotation omitted). “[T]o warrant reversal for a violation of MCL 767.40a, defendant 

must show that he was prejudiced by noncompliance with the statute.” Everett, 318 Mich App at

523 (quotation omitted). Defendant’s argument that the prosecutor was somehow obligated to 

“obtain the presence of” KB is simply wrong, especially given defendant’s correct 

acknowledgement that the prosecution no longer has a duty to produce a res gestae witness. See 

People v Perez, 469 Mich 415, 418-419; 670 NW2d 655 (2003). Rather, the prosecutor is only 

required to notify defendant of any known res gestae witnesses and help obtain witnesses upon 

request by the defense. Id. Significantly, defendant clearly knew about KB, including KB’s

identity, and never made any effort to call KB or ask the prosecutor for help obtaining KB. In 

contrast, it appears that the prosecution does not know who KB is. The prosecutor did not breach 

its duty.

Even if the prosecution breached a duty to inform the defense of the existence of KB,

defendant cannot have suffered any possible prejudice. The purpose of the notice requirement is 

merely to notify the defendant of the witness’s existence and res gestae status. Gadomski, 232 

Mich App at 36. As noted, defendant already knew about KB’s existence and res gestae status, 

and he never made any request to the prosecutor for assistance in locating KB. Therefore, even if 

the prosecutor’s failure to list KB was an error, it was harmless. People v Calhoun, 178 Mich App 

517, 522-523; 444 NW2d 232 (1989).

III. SUFFICIENCY OF THE EVIDENCE 

Defendant argues that the prosecution presented insufficient evidence to convict him of 

first-degree murder, felony-firearm, and felon-in-possession. We disagree. 

“When a defendant challenges the sufficiency of the evidence in a criminal case, this Court 

considers whether the evidence, viewed in a light most favorable to the prosecution, would warrant 
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a reasonable juror in finding that the essential elements of the crime were proved beyond a 

reasonable doubt.” People v Jackson, 292 Mich App 583, 587; 808 NW2d 541 (2011). 

“[C]ircumstantial evidence and reasonable inferences arising from that evidence can constitute 

satisfactory proof of the elements of a crime.” People v Williams, 294 Mich App 461, 471; 811 

NW2d 8 (2011) (quotation and citation marks omitted). The trier of fact may not engage in 

speculation, but it is entitled to pick and choose what evidence to believe. See People v Howard, 

50 Mich 239, 242-243; 15 NW 101 (1883); People v Bailey, 451 Mich 657, 673-675, 681-682; 

549 NW2d 325 (1996). “This Court will not interfere with the trier of fact’s role of determining 

the weight of the evidence or the credibility of witnesses.” People v Kanaan, 278 Mich App 594,

619; 751 NW2d 57 (2008). 

“[T]he elements of first-degree murder are (1) the intentional killing of a human (2) with 

premeditation and deliberation.” People v Oros, 502 Mich 229, 240; 917 NW2d 559 (2018)

(quotation omitted). “Premeditation and deliberation may be established by an interval of time 

between the initial homicidal thought and ultimate action, which would allow a reasonable person 

time to subject the nature of his or her action to a ‘second look.’ ” Id. at 242 (footnote omitted). 

“[S]ome time span between the initial homicidal intent and ultimate action is necessary to establish 

premeditation and deliberation, but it is within the province of the fact-finder to determine whether 

there was sufficient time for a reasonable person to subject his or her action to a second look.” Id

(quotation omitted). “By the weight of authority the deliberation essential to establish murder in 

the first degree need not have existed for any particular length of time before the killing.” Id. at 

243 (quotation omitted). “[I]t is often said that premeditation and deliberation require only a ‘brief 

moment of thought’ or a ‘matter of seconds.’ ” Id. at 242-243 (citation and quotation marks 

omitted). “The requisite state of mind may be inferred from defendant’s conduct judged in light 

of the circumstances.” Id. at 243 (quotation omitted). 

There is more than sufficient evidence to find that defendant intentionally killed CL. One 

eyewitness directly observed defendant shoot CL with no indication that CL posed a threat to 

defendant; two other witnesses additionally provided ample circumstantial evidence from which 

the trier of fact could also find beyond a reasonable doubt that defendant intentionally killed CL. 

Defendant provides a summary of each eyewitness’s testimony and asserts that they are too 

inconsistent and incredible to believe, but he provides little explanation of why. The fact that the 

different witnesses recalled slight variations in defendant’s attire is essentially irrelevant. The fact 

that the different witnesses recalled different other people with defendant is hardly inconsistent. 

One eyewitness was not directly on the scene during the shooting, and the other two eyewitnesses

both stated that KB was present and implied that they did not know all of the others. We find no 

reason to interfere with the trial court’s credibility assessment. 

There was also sufficient evidence that defendant killed CL with premeditation and 

deliberation. One eyewitness described CL and defendant “feuding” about money defendant owed 

CL. According to AI, defendant was speaking to CL in an aggressive manner, and the conversation 

seemed to escalate and deescalate before CL was shot. The fact that defendant instructed one 

eyewitness to leave before apparently directly approaching CL and shooting him strongly suggests 

that defendant had formed the intent to kill CL with ample time in which to take a “second look.” 

A reasonable trier of fact could find beyond a reasonable doubt that defendant intentionally killed 

CL with deliberation and premeditation.
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“The elements of felony-firearm are that the defendant possessed a firearm during the 

commission of, or the attempt to commit, a felony.” People v Muhammad, 326 Mich App 40, 61; 

931 NW2d 20 (2018). The evidence clearly established that defendant effectuated the murder of 

CL by shooting CL. There being no obvious way to shoot someone without possessing a firearm, 

a reasonable trier of fact could find beyond a reasonable doubt that defendant possessed a firearm 

during the commission of a felony. 

The elements of felon-in-possession are: “(1) the defendant is a felon who possessed a 

firearm (2) before his right to do so was formally restored under MCL 28.424.” People v Bass, 

317 Mich App 241, 268; 893 NW2d 140 (2016). Defendant stipulated to the admission of evidence 

that he had a specified felony from 2012, which prohibited him from possessing a firearm on July 

19, 2017. Defendant’s DNA was found on the handgun found nearby, and aside from the evidence 

that defendant shot CL, eyewitnesses indicated that they had observed defendant with the gun 

earlier in the day. Thus, there was sufficient evidence presented to find defendant guilty of felonyfirearm. 

IV. INEFFECTIVE ASSISTANCE OF COUNSEL 

Defendant contends that he was denied his constitutional right to the effective assistance 

of counsel. We disagree. 

A. STANDARD OF REVIEW AND LEGAL PRINCIPLES 

“Whether a defendant has been denied the effective assistance of counsel is a mixed 

question of fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d 

255 (2016). “Generally, a trial court’s findings of fact, if any, are reviewed for clear error, and 

questions of law are reviewed de novo.” Id. at 188. Because no Ginther2hearing has been held, 

there are no findings of fact for us to review, so we are limited to mistakes apparent on the record. 

Id. Nevertheless, we conduct our review mindful that defendant filed two motions in this Court to 

remand for a Ginther hearing, both of which this Court denied without prejudice. People v 

Lavington, unpublished order of the Court of Appeals, entered February 12, 2019 (Docket No. 

344225); People v Lavington, unpublished order of the Court of Appeals, entered May 1, 2019 

(Docket No. 344225). We will therefore afford defendant the benefit of any doubt whether an 

evidentiary hearing is appropriate. 

In order to prevail on a claim of ineffective assistance of counsel, a defendant has the 

burden of establishing that “(1) counsel’s performance fell below an objective standard of 

reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability 

that the outcome would have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 

136 (2012). “Effective assistance of counsel is presumed, and the defendant bears a heavy burden 

of proving otherwise.” People v Eisen, 296 Mich App 326, 329; 820 NW2d 229 (2012) (citation 

and quotation marks omitted). There is also a “strong presumption that counsel’s performance 

was born from a sound trial strategy.” Trakhtenberg, 493 Mich at 52. “This presumption can only 

be overcome by a showing of counsel’s failure to perform an essential duty, which failure was 

 

2 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 
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prejudicial to the defendant.” People v Hampton, 176 Mich App 383, 385; 439 NW2d 365 (1989). 

However, “trial counsel cannot be faulted for failing to raise an objection or motion that would 

have been futile.” People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998). 

B. FAILURE TO PREPARE A CONSISTENT DEFENSE 

Defendant argues that trial counsel was ineffective for failing to prepare a consistent 

defense. Specifically, defendant contends that trial counsel failed to properly prepare a defense 

strategy or prepare defendant for trial, and as a result, defendant and trial counsel presented 

inconsistent defenses. We disagree. 

Defendant accurately points out that defense counsel informed the trial court during 

opening statements that defendant would testify that he acted in self-defense and disposed of the 

gun because he was aware that he was not legally allowed to have a gun. Defendant did in fact 

testify as the final witness at trial. Contrary to the opening statement, defendant testified that he 

was not present at the scene, but instead, he was at his home with KB, Connie, and his neighbor 

Anthony. Defendant contends that he heard the gunshots, but he is unaware of what occurred. 

We find nothing in the record to suggest that an alibi defense was ever contemplated by 

defendant or his attorney prior to defendant taking the stand. In contrast, in light of the evidence, 

a self-defense theory was highly reasonable. There was overwhelming evidence that defendant 

shot CL—however, as defense counsel pointed out, there was little, if any, explanation of why

defendant shot CL. Furthermore, two telephone calls defendant made from jail were admitted, and 

although we have not been provided with their contents, defendant apparently discussed in one of 

them having acted in self-defense. Finally, it would have been a fair extrapolation from the 

evidence that the argument between defendant and CL was mutual and had the potential to become 

mutually violent. A self-defense theory was reasonable, and, if believed, it could have at least 

resulted in an acquittal of first-degree murder. 

Defendant’s testimony that he was not present at the scene, in complete conflict with the 

other witnesses’ testimony, is therefore curious. We agree with the prosecutor that the only likely 

explanation is that defendant made a last-moment decision to testify that he was not present, 

contrary to what counsel obviously believed would occur. The record clearly shows that counsel 

did prepare a reasonable defense strategy, and it strongly implies that defendant was aware of that 

strategy at the beginning of the trial. We cannot fault counsel for defendant choosing to go offscript. In any event, given the overwhelming evidence that defendant shot CL, we find no reason 

to believe the outcome of the trial might have changed if counsel had pursued a theory that 

defendant was not present during the shooting. 

C. FAILURE TO CALL WITNESSES FOR THE DEFENSE 

Defendant argues that trial counsel was ineffective for failing to call corroborating 

witnesses to testify at trial. We disagree.

Defense counsel’s failure to undertake a reasonable investigation may constitute 

ineffective assistance of counsel. Trakhtenberg, 493 Mich at 51-55. However, “[d]ecisions 

regarding what evidence to present and whether to call or question witnesses are presumed to be 
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matters of trial strategy, which [this Court] will not second-guess with the benefit of hindsight,”

People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (quotation and footnote omitted). 

Moreover, “the failure to call witnesses only constitutes ineffective assistance of counsel if it 

deprives the defendant of a substantial defense.” Id. at 398. A substantial defense is one that 

affects the outcome of the trial. People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). 

Defendant’s argument is premised on the theory that counsel was ineffective for failing to 

call various individuals, such as Connie and KB. However, defendant has still not provided any 

identifying information for any of these individuals, nor has he provided an affidavit from any of 

them setting forth what testimony they might have provided. Defendant asserts that testimony 

from these witnesses “would have cast doubt on the prosecution’s case,” but defendant fails to set 

forth how their testimony would have cast doubt on the prosecution’s case. Defendant may not 

simply set forth that these witnesses would have assisted the defense, because this Court will not 

“search for a factual basis to sustain or reject his position.” People v Traylor, 245 Mich App 460, 

464; 628 NW2d 120 (2001) (quotation omitted). Furthermore, these individuals were known to 

defendant, and counsel was almost certainly aware of their existence. Calling individuals to testify 

that defendant was not present at the shooting would conflict with a self-defense theory. Declining 

to call any witnesses allegedly present for the shooting was, in the absence of any offer of proof to 

the contrary, almost certainly a sound tactical decision. Finally, defendant’s failure to provide an 

offer of proof also precludes us from having any reason to believe the outcome of the proceedings 

might have been different if any of these individuals had been called to testify. 

D. FAILURE TO OBJECT TO THE PROSECUTION’S FAILURE TO OBTAIN KB OR 

NOTIFY THE DEFENSE THAT KB WAS A RES GESTAE WITNESS 

Defendant argues that trial counsel was ineffective for failing to object to the prosecution’s 

failure to produce KB for trial or notify the defense that KB was a res gestae witness. We disagree. 

As discussed above, the prosecutor was not under a duty to obtain or identify KB, and the 

prosecutor did not list KB, or anybody with matching initials, as a witness. As also discussed 

above, defendant has failed to provide any indication that KB’s testimony might have affected the 

outcome of the proceedings.

E. ENTITLEMENT TO A GINTHER HEARING 

Defendant contends that this Court should remand for a Ginther hearing for further factual 

development to determine whether trial counsel was ineffective. We disagree. After fully 

reviewing the record, we conclude that defendant clearly received effective assistance of counsel. 

We are not persuaded, even giving defendant the benefit of any doubt, that a Ginther hearing might 

indicate that counsel had not been effective. We therefore decline to remand for a Ginther hearing. 

Affirmed.

/s/ Amy Ronayne Krause 

/s/ Kirsten Frank Kelly 

/s/ Jonathan Tukel