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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UNPUBLISHED

July 5, 2018

v No. 335068

Wayne Circuit Court

DEMETRI DOWDELL, LC No. 15-006696-01-FC

Defendant-Appellant.

Before: JANSEN, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

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

(CCW), MCL 750.227; felon in possession of a firearm, MCL 750.224f; possession of a firearm 

during the commission of a felony (felony firearm), MCL 750.227b; and assault with a 

dangerous weapon (felonious assault), MCL 750.82. The trial court sentenced defendant, as a 

fourth habitual offender, MCL 769.12, to concurrent terms of 3 to 15 years’ imprisonment for the 

CCW conviction, 3 to 15 years’ for the felon in possession of a firearm conviction, and 3 to 15 

years’ for the felonious assault conviction, to be served consecutive to two years’ imprisonment 

for the felony-firearm conviction. While defendant argues that he was denied due process, we 

find that defendant was afforded due process. We remand to the trial court, however, to allow 

defendant to expand the record to include Jason Algazzaly’s affidavit, and to hold a Ginther1

hearing to determine whether defendant was denied the effective assistance of counsel. 

I. FACTS

On May 8, 2015, Aaron Hughes, an employee of a Citgo gas station in Detroit, had gotten 

into an argument with defendant. Hughes had been working at the gas station for approximately 

four years, and knew defendant, who was a regular customer at the gas station. Hughes testified 

that on the morning of May 9, 2015, he arrived at the gas station for work and saw defendant 

outside the store, holding a six-seven foot long metal pole in a threatening manner. Defendant 

raised the pole, and Hughes believed that defendant was going to hit him with it, so Hughes 

punched defendant in the face and stomach allegedly in self-defense. Defendant fell back onto 

the ground and Hughes noticed that defendant had something that looked like a gun in his 

 1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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pocket. Defendant got up and began chasing Hughes with the pole. Hughes eventually ran to his 

house down the street and called the police from a neighbor’s phone.

After receiving word from a friend that defendant was no longer at the gas station, 

Hughes returned to the gas station. He testified that as he walked up to the gas station, defendant 

approached him for the second time. Defendant picked up the pole again and swung it at 

Hughes, who ducked away from it. Defendant eventually left and Hughes went into the gas 

station, intending to work his normal day shift. Later in the day, defendant returned for a third 

time, and walked into the gas station. Hughes was standing behind the front counter, which was 

encased in bulletproof glass, and told defendant he was stupid. Angered, defendant approached 

the counter and lifted up his shirt, where, according to Hughes, he had a gun in the waistband of 

his pants. “Mike”, Hughes’s coworker, told defendant to leave, and defendant eventually did so.

Hughes called the police and, on their arrival, they reviewed a surveillance video of the 

gas station from that day and took a statement from Hughes. The video was not available for 

review at any later time, due to the fact that the video system recorded over itself every 15 days, 

and too much time had elapsed when Detroit police sought to recover the video. Defendant was 

arrested in July of 2015 and, after a jury trial, he was convicted as stated above. 

II. DUE PROCESS

On appeal, defendant first argues that he was denied due process where the police failed 

to retrieve a surveillance video, and where the prosecution failed to inform him of the names of 

res gestae witnesses. We disagree.

To preserve a due process argument on appeal, a defendant is required to raise an 

objection on due process grounds in the trial court. People v Hanks, 276 Mich App 91, 95; 740 

NW2d 530 (2007). At trial, defendant did not explicitly raise a due process argument regarding 

the failure to preserve the surveillance video, nor did he raise a due process argument regarding 

the prosecution’s failure to inform him regarding the names of res gestae witnesses. Thus, this 

issue is unpreserved. Unpreserved claims of error are reviewed for plain error affecting the 

defendant’s substantial rights. People v Carines, 460 Mich 750, 752-753; 597 NW2d 130 

(1999). Because defendant failed to preserve this issue for appeal, this Court must review the 

issue using the plain error standard. “To avoid forfeiture under the plain error rule, three 

requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or 

obvious, 3) and the plain error affected substantial rights.” Id. at 763. The third aspect 

“generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower 

court proceedings.” Id. Reversal will only be warranted where the plain error leads to “the 

conviction of an actually innocent defendant,” or where an error affects the “fairness, integrity, 

or public reputation” of the judicial proceeding. Id. at 763-764.

Defendant first argues that he was denied due process because the police did not obtain 

surveillance video from the gas station where the alleged incident for which he was convicted 

took place. Defendant wanted to produce the surveillance video footage at trial because he 

believed that the material it contained would exonerate him. The police were unable to retrieve 

the video footage because the gas station surveillance system had already erased the video from 

the date that defendant fought with the victim. 
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“[A] loss of physical evidence that occurs before a defense request for its production does 

not require reversal absent the intentional suppression of evidence or a showing of bad faith.” 

People v Adams, 232 Mich App 128, 138 n 10; 591 NW2d 44 (1998). “Defendant bears the 

burden of proving . . . in the case of failure to preserve evidence, that the police acted in bad 

faith.” People v Bosca, 310 Mich App 1, 26; 871 NW2d 307 (2015). In People v Heft, 299 

Mich App 69, 79; 829 NW2d 266 (2012), this Court stated that “[a] criminal defendant can 

demonstrate that the state violated his or her due process rights under the Fourteenth Amendment 

if the state, in bad faith, failed to preserve material evidence that might have exonerated 

defendant.” If defendant, however, is unable to show that the police acted in bad faith, then the 

failure to preserve the evidence does not constitute a denial of due process. Id. at 79.

It is evident from the record that the police were not acting in bad faith when they failed 

to obtain a copy of the surveillance video. The police had no knowledge of the fact that the gas 

station’s surveillance system periodically erased old recordings, and thus, it cannot be argued 

that their failure to timely obtain the surveillance video was intentional or done in bad faith. 

Also, Officer Lisa Johnson of the Detroit Police Department testified that police protocol did not 

require that she obtain the surveillance video until after she had made contact with the 

complaining witness. Officer Johnson was unable to immediately contact the complaining 

witness due to scheduling conflicts and other communication issues, and thus, the surveillance 

video had been lost by the time she was able to make contact and to subsequently file a request 

for the video. The loss of the video appears to be an unforeseeable mistake, which the police 

department had no control over, and thus, it does not rise to the level of “bad faith” required to 

show that defendant was denied due process.

Defendant also argues that he was denied due process and the right to a fair trial because 

the prosecution did not inform him that two gas station employees, Mike Algazzaly (“Mike”) 

and Jason Algazzaly (“Jason”), were res gestae witnesses. A res gestae witness is defined as a 

witness to “some event in the continuum of the criminal transaction,” whose testimony would 

assist the development of “a full disclosure of the facts at trial. People v Long, 246 Mich App 

582, 585; 633 NW2d 843 (2001). Under MCL 767.40a, which governs the prosecution’s duties 

regarding the production of witnesses, the prosecution has “ ‘an obligation to provide notice of 

known witnesses and reasonable assistance to locate witnesses on defendant’s request.’ ” MCL 

767.40a; People v Perez, 469 Mich 415, 418-419; 670 NW2d 655 (2003) (citation omitted). 

Specifically, MCL 767.40a states:

(1) The prosecuting attorney shall attach to the filed information a list of all 

witnesses known to the prosecuting attorney who might be called at trial and all 

res gestae witnesses known to the prosecuting attorney or investigating law 

enforcement officers.

(2) The prosecuting attorney shall be under a continuing duty to disclose the 

names of any further res gestae witnesses as they become known.

(3) Not less than 30 days before trial, the prosecuting attorney shall send to the 

defendant or his or her attorney a list of the witnesses the prosecuting attorney 

intends to produce at trial.
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(4) The prosecuting attorney may add or delete from the list of witnesses he or she 

intends to call at trial any time upon leave of the court and for good cause shown 

or by stipulation of the parties.

(5) The prosecuting attorney or investigative law enforcement agency shall 

provide to the defendant, or defense counsel, upon request, reasonable assistance, 

including investigative assistance, as may be necessary to locate and serve process 

upon a witness . . . . [Perez, 469 Mich at 418 n 4; quoting MCL 767.40a.]

“The purpose of the listing requirement is merely to notify the defendant of the witness’ 

existence and res gestae status.” People v Gadomski, 232 Mich App 24, 36; 592 NW2d 75 

(1998) (quotation omitted). 

It is undisputed that Mike and Jason Algazally were res gestae witnesses, and that the 

prosecution failed to list them as required by the statute. Failing to do so, however, does not 

necessary require reversal since “if the defendant knew of the res gestae witnesses in any event, 

the prosecutor’s failure to list the witness would be harmless error.” People v Calhoun, 178 

Mich App 517, 523; 444 NW2d 232 (1989). In this case, it is clear that defense counsel was 

aware of the existence of these witnesses since he attempted to include them on his witness list, 

albeit only by initials and workplace. There is no evidence in the record before us that the police 

had the full names of these individuals. More to the point, defense counsel had sufficient 

information such that he could have requested investigative assistance in locating and producing 

these witnesses pursuant to MCL 767.40a(5), but he failed to do so. Accordingly, we conclude 

that the prosecution’s failure to list these witnesses is harmless and that the pertinent question is

whether defense counsel undertook a proper investigation, including seeking investigative 

assistance. 

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant next argues that he was denied the effective assistance of counsel where 

defense counsel failed to call a res gestae witness. To preserve a claim of ineffective assistance 

of counsel, a defendant must move for a new trial or a Ginther hearing in the trial court. People 

v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). Defendant failed to move for a new 

trial or for a Ginther hearing in the trial court. Defendant did, however, make a motion to 

remand to the trial court for the purpose of a Ginther hearing with this Court. Defendant sought 

to expand the record on appeal in order to establish whether he had been denied the effective 

assistance of counsel. In support of his motion, defendant attached the affidavit of Jason 

Algazzaly. In his affidavit, Algazzaly swore that his brother, Mike, was present during the 

incident. While Jason, was not present during the incident, he reviewed the surveillance 

videotape of the gas station for the day of the incident in question and he averred that there was 

no gun visible on defendant at any time during that day. He further averred that after the 

incident, Hughes spoke a lot about what he wanted to do to the defendant. Algazzaly further 

averred that he has never seen the defendant with a gun and that defense counsel never spoke to 

him about the incident. A panel of this Court denied the motion to remand, without prejudice, 

for failure to persuade the Court of the necessity of a remand at that time. People v Dowdell, 

unpublished order of the Court of Appeals, entered July 10, 2017 9Docket No. 335068). 
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In order for defendant to establish a claim of ineffective assistance of counsel, he must 

show “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). Meeting 

this standard is difficult, and “defendant must overcome a strong presumption that counsel’s 

performance constituted sound trial strategy.” People v Riley, 468 Mich 135, 140; 659 NW2d 

611 (2003). Additionally, defense counsel is presumed to be effective. People v Frazier, 478 

Mich 231, 243; 733 NW2d 713 (2007).

The only testimony placing a gun with defendant came from Hughes. If Jason, who 

viewed the surveillance videotape were to testify consistent with his affidavit that he never saw a 

gun on defendant on the day in question, that could potentially change the outcome of the trial. 

In addition, Mike Algazzaly, who allegedly was present when the incident took place, could 

offer testimony at the Ginther hearing favorable to the defendant. While decisions regarding 

which witnesses to call are considered a matter of trial strategy, People v Putman, 309 Mich App 

240, 248; 870 NW2d 593 (2015), failing to call a witness is considered ineffective assistance if it 

deprived the defendant of a substantial defense. Id. “A substantial defense is one that could 

have affected the outcome of the trial.” Id. Because Jason’s affidavit and potential testimony, 

and Mike’s potential testimony, may reasonably a have affected the outcome of the trial, 

defendant should be afforded an opportunity to expand the record before the trial court and have 

the trial court determine whether defendant was, in fact, denied the effective assistance of 

counsel. 

We remand to the trial court to allow defendant to expand the record to include Jason 

Algazzaly’s affidavit and to hold a Ginther hearing to determine whether defendant was denied 

the effective assistance of counsel. We retain jurisdiction.

/s/ Deborah A. Servitto 

/s/ Douglas B. Shapiro 
Court of Appeals, State of Michigan

ORDER

People of MI v Demetri Dowdell

Docket No. 335068

LC No. 15-006696-01-FC

Kathleen Jansen 

Presiding Judge

Deborah A. Servitto 

Douglas B. Shapiro 

Judges

The Court orders that this matter is REMANDED to the trial court for an evidentiary 

hearing and decision to determine whether defendant-appellant was denied the effective assistance of 

counsel. People v Ginther, 390 Mich 436; 212 NW2d 922 (1993). On remand defendant shall be 

allowed to expand the record to include the affidavit by Jason Algazzaly. 

Defendant shall file with this Court a copy of any motion and supporting brief filed in the 

trial court regarding this matter within 14 days after the Clerk’s certification of this order. 

The trial court shall hear and decide the matter within 84 days after the Clerk’s 

certification of this order. The trial court shall make findings of fact and a determination on the record 

and cause a transcript of any hearing on remand to be prepared and filed within 21 days after completion 

of the proceedings. 

Within 21 days after entry of the trial court’s order deciding the matter or 21 days after 

the transcript of the hearing is filed, whichever is later, defendant may file a supplemental brief with this 

Court pertaining to the issues raised on remand. Plaintiff may file a supplemental brief in response.

The Court retains jurisdiction. 

/s/ Kathleen Jansen

July 5, 2018