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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 9, 2015

v No. 317282 Jackson Circuit Court TODD DOUGLAS ROBINSON, LC No. 12-003652-FC

Defendant-Appellant.

Before: K. F. K ELLY , P.J., and S AWYER and M ETER , JJ.

P ER C URIAM

. Defendant appeals by right his jury trial convictions of preme ditated first-degree murder, MCL 750.316, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to life in prison without parol e for the murder conviction and an additional two years for the felony-firearm conviction. We affirm.

Defendant was convicted of shoot ing and killing the victim as part of a drug deal involving promethazine. The evidence against defendant was bot h direct and circumstantial. Two witnesses—Joe Kelley and Troy Heard, both long-time friends of defendant—testified that the three men were playing their regular game of dominoes at Ke lley’s house. Kelley testified that defendant went to the kitche n to talk with someone, probab ly a man but Kelley did not know who it was, and went out the back door with the person. Minute s later, Kelley heard a gunshot from “out back.” Heard went outside briefly, returned, and sai d he had to leave. Kelley saw defendant looking in his truck, saw a man he did not recognize lying down by the fence, and called 911. On cross-examination, Kelley said that he did not see defendant with a gun that night.

Heard testified that someone knocked at the back door, and def endant answered. Heard identified the victim as being the man at the door. Defendant and the victim were negotiating over the sale of promethazine. Defendant came back to the tabl e, laid a gun on the table, and said “it ain’t gonna go down like they think.” There was anoth er knock at the back door and defendant answered. Heard then heard what sounded like a gunsh ot. Heard looked out the kitchen window and saw defendant move the victim to the fence. As Heard was leaving, defendant said that the victim drew a gun on him and walked him out of the house. The next morning Detective Stiles went t o Heard’s house and Heard told a different story. Later, Heard-2- got arrested with a gun, and Stiles again came to see him. Hea rd testified that he had a gun charge pending but expected nothi ng in exchange for his testimo ny at defendant’s trial.

I. SUFFICIENCY OF THE EVIDENCE

Defendant first argues that his conviction should be overturne d because the evidence used against him was insufficient, i ncompetent, and inadmissible. D efendant contends that the prosecution introduced propensity evidence that defendant was a coward and had a reputation of carrying a .38-caliber gun and inadmissible hearsay evidence fr om Kelley, a police informant, that defendant was the shooter. Further, defendant maintains t hat Heard’s testimony was improper because the jury was repeatedly told there was no deal to dismiss unrelated charges against Heard in exchange for hi s testimony when there was in f act a deal.

This Court reviews de novo chal lenges to the sufficiency of th e evidence. People v Lockett , 295 Mich App 165, 180; 814 NW2d 295 (2012). Whether there is sufficient evidence for conviction is determined by whether any rational trier of f act could have found that the essential elements of the crime were proven beyond a reasonable doubt. Id . All conflicts regarding the evidence are drawn in favor of the prosecution, a nd circumstantial evidence and reasonable inferences that may be drawn from that evidence may be sufficient to prove the elements of the crime. Id. “ This Court will not interfere with the trier of fact’s role of determining the weight of the evidence or the credibility of wi tnesses.” People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008).

“To prove first-degree premeditated murder, the prosecution mu st establish that the defendant intentionally killed the victim and that the act of k illing was premeditated and deliberate.” People v Mette , 243 Mich App 318, 330; 621 NW2d 713 (2000); MCL 750.316(1)(a). Premeditation requires that there be sufficient time to permit the defendant to take a second look and this may be inferred from the circumstan ces surrounding the killing. People v Kelly
, 231 Mich App 627, 642; 588 NW2d 480 (1998).

While defendant’s statement of questions presented states that his argument is that the evidence was insufficient to support his conviction for first-d egree murder, a significant portion of his argument addresses the admissibility of evidence. Defen dant’s arguments for the inadmissibility of evidence are vague, and he fails to assert t he specific grounds. It can only be presumed defendant means to assert that some evidence was impro perly admitted and without this evidence there was insufficient evidence to support his co nviction. This Court reads all conflicts regarding the eviden ce in favor of the prosecution. Lockett , 295 Mich App at 180.

Defendant misreads and misconstrues many of the facts below. Defendant failed to object to much of the evidence he now challenges as inadmissibl e. Much of this evidence was introduced by defendant. But first, we must address the argume nt that there was an undisclosed deal in place between the prosecutor and Heard in exchange for his testimony. During oral argument in this Court, the prose cution conceded that there had , in fact, been a deal reached with the witness granting immunity on a possible future charge again st him. Accordingly, we remanded the matter to the trial court to address this issue. In particular, we directed the trial court to determine whether the error was nevertheless harmless. The trial court conducted an extensive evidentiary hearing. The trial court stated that it appeared that, at trial, the prosecutor-3- and the witness appeared to think that the question of immunity related to the existing charges against the witnesses rather than the possibility of a future c harge arising out of this case. The trial court also noted that defense counsel was aware of the gr ant of immunity related to a potential future charge arising out of the instant case. Ultim ately, the trial court concluded that there was no reasonable likelihood that disclosure of the grant of immunity would have affected the outcome and that the error was harmless. We are not persua ded that the trial court erred in this determination.

Next, the testimony from Detective Stiles, that Kelley alleged ly said if the victim was shot in the back of the head defendant was the shooter because he was a coward, was elicited on cross-examination by defendant for the clear purpose to examine a previous statement of Kelley and his bias and credibility. Defendant cannot challenge the a dmission of his own evidence as improper propensity evidence. Defendant fails to explain why t his Court should rule that evidence he introduced was impr oper and why it should not be ad missible when used for a proper purpose to show the bias of the witness.

Evidence that defendant possessed a .38-caliber firearm was ad missible. The testimony was introduced in multiple ways and it is unclear what defendan t challenges on appeal. The evidence was introduced on the cross-examination of Stiles as t o prior inconsistent statements of Kelley. Defendant cannot challenge the admission of his own ev idence, and he fails to explain how this was improper propensity evidence and not impeachment. The other mentions of the gun were as part of plaintiff’s case-in-chief testimony of Dete ctive Stiles, referencing a prior inconsistent statement of Kelley’ s that defendant shot the vict im with a .38-caliber firearm, and on redirect examination Stiles e xplains how Kelley was aware de fendant carried a .38-caliber firearm. All of this was proper and defendant fails to allege how it was improper.

Defendant fails to allege how K elley’s testimony was improper and what portions were improper hearsay. Further, ther e was nothing incredible about Heard’s testimony and it was not unusual, only that it weighed h eavily against defendant’s innoc ence. Therefore, to the degree defendant alleges the evidence was improperly admitted, the all egation is without merit.

Applying all the evidence submitted to the court, regardless o f defendant’s allegations of inadmissibility, there is sufficient evidence to support defend ant’s guilt. Evidence was introduced to show that defendant had a .38-caliber firearm con sistent with the weapon used to kill the victim. There were multiple instances of testimony th at defendant (1) was with the victim right before the shooting as part of a drug deal, (2) st ated while setting down a gun that “it ain’t gonna go down the way they think” referring to the victim , (3) was seen moving the victim, (4) stated he shot the person, and (5) stated to law enforcemen t that he was present at the shooting. When taken together this is more than sufficient dir ect and circumstantial evidence to support the conviction. The evide nce fits togeth er and corrobo rates the other evidence. The evidence shows that defendant i ntentionally and premeditatedly killed the victim.

II. PROSECUTORIAL MISCONDUCT

Next defendant argues that the prosecution engaged in several forms of misconduct. Unpreserved claims of prosecuto rial misconduct are reviewed for plain error affecting substantial rights. People v Thomas , 260 Mich App 450, 453-454, 678 NW2d 631 (2004). To avoid-4- forfeiture under the plain error rule: (1) the error must have occurred; (2) the error must have been plain, meaning clear or obvious; and (3) the plain error h ad to prejudice the defendant by affecting the outcome of the lower court proceedings. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). Even if this Court finds plain error, it will only reverse the lower court when the error seriously affected the fairness, integrity, or public reputation of judicial proceedings regardless of a defendant’s innocence or where the error result ed in an actually innocent defendant’s conviction. Id.

Claims of prosecutorial misc onduct are reviewed on a case-by-c ase basis with alleged improper remarks reviewed in context. People v Brown , 267 Mich App 141, 152; 703 NW2d 230 (2005). The proper test for prosecutorial misconduct is wh ether the defendant was denied a fair and impartial trial. People v Howard , 226 Mich App 528, 544; 575 NW2d 16 (1997). “No error requiring reversal will be found if the prejudicial effec t of the prosecutor’s comments could have been cured by a timely instruction.” People v Schutte , 240 Mich App 713, 721; 613 NW2d 370 (2000). The prosecutor has a duty to disclose any promises made to secure a witness’s testimony. People v Rosales , 160 Mich App 304, 310; 408 NW2d 140 (1987).

Defendant alleges that the prosecutor committed misconduct by (1) indicating in his opening statement that it might n ever be known what happened be cause defendant had no burden of proof and did not have to t estify, (2) introduc ing testimony from Heard that was perjured and offered in exchange for a deal, and (3) eliciting testimony fro m Stiles that in his experience witnesses often change their stories. We find no plain error a ffecting defendant’s substantial rights. People v Callon , 256 Mich App 312, 329; 662 NW2d 501 (2003).

Defendant alleges that the prosecutor committed misconduct by introducing Heard’s testimony that was perjured and offered in exchange for a deal, the prosecutor’s opening statement, and the testimony of S tiles that in his experience w itnesses often change their stories. Defendant fails in all arguments.

With regard to the allegation that the prosecutor committed mi sconduct in his opening statement, defendant challenges the following:

Now, what happened outside in that driveway I can’t really tel l you. There’s only two people that are confirmed to be out in that dr iveway. One is Eshaum Gant, who has obviously passed away. The other person w ould have been Todd Robinson. And Todd Robinson is under absolutely no o bligation to say anything. He has no burden, he doesn’t have to testify and he – we may never know what Todd Robinson will say happened. But Todd Robinson d id make a statement when he talked to Detective Brett Stiles right around this time frame when this happened.

It is unclear how this statement amounts to prosecutorial misc onduct and, absent saying it is, defendant does not explain further. By all accounts and wh en reviewed for plain error there is no indication of misconduct in t his statement. Defendant was n ot denied a fair and impartial trial because of this statement. Howard , 226 Mich App at 544.-5- Next, defendant alleges that the prosecutor committed miscondu ct in allowing the testimony of Heard, which defendant asserts was perjured and on ly offered as part of an undisclosed agreement with the witness. However, as discussed above, the trial court did not conclude that the prosecutor a cted intentionally in withholding this information. Moreover, in light of the trial court’s conclu sion that this error was harml ess, there can be no plain error.

Lastly, defendant challenges portions of the testimony of Dete ctive Stiles. On direct examination, Stiles had just testified that he interviewed Hear d twice and that the first interview was not consistent with Heard’s trial testimony but the second interview was consistent. The following then ensued:

Q. You said you’ve been a police officer for how long?

A. Over 19 years now.

Q . Do you often get situations w here you speak to witnesses or individuals more than once?

A . Yes.

Q . Do you often get situations where the original story changes after another time—(inaudible)?

A . Yes. Yes, I do.

* * *

Q. How often do circumstances like that ha ppen with you?

A. It happens quite often.

Q. All right. So it’s not a surpri se to you when a story changes?

A. Not at all.

This testimony from Stiles was not a statement of his opinion regarding whether any witness at defendant’s trial was or was not telling the truth. It was merely a statement that, in his experience as a police officer, w itnesses often ch ange their st ory. This was not expert testimony as asserted by defendant.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant’s final argument is that his trial counsel provided ineffective assistance of counsel. “In order to preserve the issue of effective assistan ce of counsel for appellate review, the defendant should make a motion in the trial court for a new trial or for an evidentiary-6- hearing.” People v Sabin , 242 Mich App 656, 658; 620 NW2d 19 (2000). Because defendant failed to move for a new trial or file a motion for a Ginther 1 hearing, this Court’s review is limited to the appellate record. Id.

To establish ineffective assistance of counsel a defendant mus t establish that counsel’s performance was deficient and that the deficient performance wa s prejudicial. Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). In or der to show deficient performance, a defendant must show that counsel’s per formance was outside the wide range of professionally competent assistance as secured under t he Sixth Amendment of the United States Constitution. Id . at 689. To satisfy the prejudice prong a defendant must show that there is a reasonable proba bility that, but for counsel’s performance, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id . In reviewing this issue, defense counsel is afforded wide latitude on matters of trial strategy. People v Unger , 278 Mich App 210, 242- 243; 749 NW2d 272 (2008).

Defendant has not shown that his counsel’s performance was def icient and that the deficient performance resu lted in prejudice to him. Strickland , 466 US at 687. A failure to bring forward a meritless argument does not constitute ineffective as sistance of counsel. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010). “In general, the failure to call a witness can constitute ineffective assistance of counsel only w hen ‘it deprives the defendant of a substantial defense.’” People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009), quoting People v Hoyt , 185 Mich App 531, 537-538; 462 NW2d 793 (1990). Decisions re garding what evidence to present and whether to call or question witnesses a re presumed to be matters of trial strategy. People v Dixon , 263 Mich App 393, 398; 688 NW2d 308 (2004). This Court will not substitute its judgment for that of counsel regarding matters o f trial strategy. People v Davis
, 250 Mich App 357, 368; 649 NW2d 94 (2002). “Failure to make a r easonable investigation can constitute ineffective assistance of counsel.” People v McGhee , 268 Mich App 600, 626; 709 NW2d 595 (2005).

Defendant fails to show that trial counsel was ineffective. T his Court’s review is limited to the existing record. Sabin , 242 Mich App at 658-659. The maj ority of defendant’s allegat ions rely on arguments outside the r ecord. Defendant asserts that t rial counsel was ineffective for (1) failing to object and conduct a reasonable investigation into t he prosecution’s deal with Heard, (2) failing to conduct a reasonable investigation into propensi ty evidence that defendant was known to carry a gun and propens ity evidence from police inform ant Kelley, (3) eliciting and not objecting during the testimony of Stiles that defendant was a c oward and might be the shooter, and (4) failing to make an opening statement, allow defendant t o testify, make required motions to preclude the admission of evi dence, and present witnesses on defendant’s behalf .

Based on the record, defendant has failed to carry his burden to show that counsel was ineffective. In light of the trial court’s conclusion that the error related to the nondisclosure of the deal with Heard, defendant c ould not have been prejudiced f or counsel’s failure to further

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-7- address this issue. Additionally, trial counsel did assert tha t there was an implied deal and examined the witnesses in length on the issue. Defense counsel insisted to the Court he be allowed to proceed in this line of questioning. Therefore, cou nsel was not ineffective on this issue.

Secondly, the testimony that defe ndant was known to carry a .3 8-caliber firearm and was a “coward” was elicited and used by defense counsel as part of its overall strategy of attacking the bias and credibility of the witnesses. This Court will not substitute its judgment for that of trial counsel in matte rs of trial strategy. Davis , 250 Mich App at 368. Furthermore, the prejudicial effect of this t estimony on defendant, if any, woul d be minimal. Moreover, this information was most likely introduced by the prosecutor under MRE 607 as impeachment evidence, and therefore counsel was not ineffective for failing to object.

Defendant’s contention that trial counsel was ineffective for failing to object to the testimony of Stiles that witnesses often change their story bec ause it was inadmissible fails because the evidence was admissible and was not expert testimon y. Counsel cannot be ineffective for failing to make a meritless argument. Ericksen , 288 Mich App at 201.

Defendant fails to show any evidence on the record that illust rates that counsel was ineffective or failed to allow defendant to testify on his own behalf. Evidence that defendant contended he was not the shooter was brought forth in the testi mony of Detective Stiles.

As for defendant’s contention that overall counsel was ineffec tive for failing to present witnesses, failing to make an opening statement, and failing to file motions to exclude evidence, these are all presumed to be tri al strategy and defendant fails to show any record facts to rebut this presumption. Absent a hearing, we are merely left to spec ulate why counsel waived his opening statement. Defendant does not name any witnesses that should have been offered to assist in his defense or elabor ate on any specific meritorious motions to exclude any evidence.

There is no evidence that tri al counsel was ineffective. In c ontrast the record establishes that there was a clear strategy on the part of defense counsel to show that the witnesses were biased against defendant, that t he key witness against him was testifying solely t o get a deal from the prosecution, and that the fo rensic evidence did not show th at defendant was the shooter.

Affirmed.

/s/ Kirsten Frank Kelly /s/ David H. Sawyer /s/ Patrick M. Meter