Opinion
No. 340942
03-21-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. SHANNON SHERELL PHILLIPS, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Washtenaw Circuit Court
LC No. 17-000132-FH Before: SAWYER, P.J., and CAVANAGH and K. F. KELLY, JJ. PER CURIAM.
Defendant appeals as of right her conviction of carrying a concealed weapon, MCL 750.227, on the ground that she received ineffective assistance of counsel. Defendant was also convicted of malicious destruction of property more than $1,000 but less than $20,000, MCL 750.377a(1)(b)(i), but does not contest that conviction. We affirm.
Defendant purchased a lottery ticket at the victim's party store. When defendant received her change from the transaction, a dispute arose over whether she had paid with a $10 or $20 bill. Defendant became upset and started swearing at the victim, demanded her money back, and began throwing things off the store counter. Defendant came behind the counter and engaged in a physical altercation with victim before an unidentified female customer made defendant leave. Defendant left her purse and keys in the store and fled on foot. A surveillance video captured the entire interaction, and a second employee was an eyewitness to the event. This appeal stems from a dispute over whether defendant was armed at the time of the incident: the victim told police that defendant had a gun in her waistband and threatened to "shoot up" the store. Defendant maintains that she was not armed.
At defendant's bench trial, defendant conceded to the malicious destruction of property but contested the charge of carrying a concealed weapon. After viewing the surveillance video multiple times, the trial court found that the victim's testimony was credible and that a "bulge" was present in defendant's pocket during the incident, which could not have been her cell phone because her cell phone was in her hand at the time. The trial court found defendant guilty on both counts.
Defendant then moved for a new trial, alleging that she received ineffective assistance of counsel because defense counsel failed to interview and subpoena the second employee, who was an eyewitness to the event and had provided a statement to the police. A Ginther hearing was conducted and at the hearing the eyewitness testified that he did not see a firearm on defendant. On cross-examination, he agreed that it was possible defendant had a gun but that he did not see it. Defense counsel testified that she did not call the eyewitness at trial because she felt his statements were detrimental to defendant, and because he might corroborate the victim's statements rather than defendant's assertion that she did not have a gun. Defense counsel was concerned this testimony might be more harmful than helpful to defendant. The trial court found that defense counsel had acted reasonably, defendant had failed to show prejudice, and there was no error; thus, the motion for a new trial was denied. This appeal followed.
On appeal, defendant first argues that she received ineffective assistance of counsel because defense counsel's failure to call the eyewitness deprived her of a substantial defense. We disagree.
Defendant moved for a new trial and a Ginther hearing, so this issue is preserved. See People v Sabin (On Second Remand), 242 Mich App 656, 658; 620 NW2d 19 (2000). Generally, "[t]he question whether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of constitutional law." People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).
As our Supreme Court explained in People v Armstrong, 490 Mich 281; 806 NW2d 676 (2011):
A defendant must meet two requirements to warrant a new trial because of the ineffective assistance of trial counsel. First, the defendant must show that counsel's performance fell below an objective standard of reasonableness. In doing so, the defendant must overcome the strong presumption that counsel's assistance constituted sound trial strategy. Second, the defendant must show that, but for counsel's deficient performance, a different result would have been reasonably probable. [Id. at 289-290 (footnotes omitted).]Defense counsel's decisions regarding whether to call a witness are presumptively matters of trial strategy. People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). "The failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense. Similarly, the failure to make an adequate investigation is ineffective assistance of counsel if it undermines confidence in the trial's outcome." Id. (quotation marks, citations, and alterations omitted).
In support of her argument, defendant relies on People v Grant, 470 Mich 477; 684 NW2d 686 (2004). In that case, defense counsel was found to be ineffective because he did not present evidence supporting an alternate causation theory for the victim's injuries that did not involve defendant. Id. at 480. That is, defense counsel failed to introduce evidence that the victim's injuries could have been caused by a bicycle accident rather than the alleged criminal sexual conduct by the defendant. Id. at 487. There were eyewitnesses to the bicycle accident whom defense counsel failed to investigate and call at trial. Id. This, the Court held, deprived the defendant of a substantial defense. Id. at 497.
The facts in this case, however, are distinguishable from those of the Grant case. The eyewitness in this case was not completely focused on defendant at the beginning of the incident, and when he moved toward defendant, his goal was to diffuse the event not to determine whether she was armed. The eyewitness consistently stated that he did not see a gun, both in his statement to police and at the Ginther hearing. However, on cross-examination, he admitted that defendant may have had a gun that he could not see. Had he testified at trial, all the eyewitness would have added to the record is that he did not see a gun; he would not have testified that defendant did not have a gun. Further, it is notable that the victim only saw the butt of a gun when defendant's shirt pulled up from her waistband. It is unlikely that the eyewitness, who was farther away, would have been able to see the concealed gun. Unlike in Grant, 470 Mich 477, the eyewitness's testimony does not provide an alternate theory of the case, nor does it provide details or information not already in the record. Therefore, his testimony does not offer a substantial defense that was otherwise unavailable to defendant and defense counsel was not ineffective for failing to call this eyewitness. See Russell, 297 Mich App at 716.
Defendant next argues that the eyewitness's testimony would have substantially impeached the victim's testimony, and the failure to introduce this impeachment evidence was objectively unreasonable. We disagree.
Defendant cites several cases that show that defense counsel's failure to introduce evidence that either impeaches or attacks the credibility of a witness against the defendant establishes ineffective assistance of counsel. Each case that defendant relies on involves excluded evidence that seriously impeached witness testimony, unlike the eyewitness's testimony in the instant case that adds a negligible amount of information to the record. Again, the eyewitness only testified that he did not see a gun; he did not testify that defendant did not have a gun. While his testimony may have corroborated defendant's claim that she was not armed, he also stated that it was possible she was armed, which corroborated the victim's testimony. The eyewitness's testimony does not add any concrete evidence to the record involving the victim's credibility. Cf. Armstrong, 490 Mich at 290-294 (defense counsel's failure to introduce cell phone records that seriously impeached complainant's credibility was prejudicial); People v Dixon, 263 Mich App 393, 397-398; 688 NW2d 308 (2004) (defense counsel's failure to introduce audio of a 911 call that seriously impeached complainant's credibility was prejudicial). Thus, defendant's argument is not persuasive. Where an uncalled witness's testimony seems contradictory and would likely not have benefited the defendant, defense counsel's decision not to call the witness is not objectively unreasonable. See Russell, 297 Mich App at 718.
Because defendant has not established that her counsel's actions fell below an objective standard of reasonableness, defendant has not met the first prong of the ineffective assistance of counsel test. See Armstrong, 490 Mich at 289-290. Further, defendant has failed to adequately address the second prong of the ineffective assistance of counsel test: prejudice. See id. Defendant simply argues that defense counsel's failure to call the eyewitness "surely prejudiced the outcome" of her trial. Defendant fails to support her argument on this point. It is well settled that an "appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority." People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). But, in any case, there is no evidence that this witness's testimony would have changed the outcome of the trial. The trial court found the victim's testimony credible, and it watched the video numerous times. It is the trier of fact's role to determine the credibility of witnesses. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). The trial court observed a "bulge" in defendant's pocket that she claimed was her cell phone, but her cell phone was in her hand or in her other pocket at the time. The addition of the eyewitness's testimony to the record would not negate the evidence supporting defendant's conviction. Therefore, defendant was not prejudiced by defense counsel's failure to subpoena the eyewitness to testify at trial. See Russell, 297 Mich App at 718. Accordingly, defendant's ineffective assistance of counsel claim is without merit.
Affirmed.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).