Opinion
352253
10-14-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOHN EDWARD BARRITT, Defendant-Appellant.
UNPUBLISHED
Genesee Circuit Court LC No. 15-038224-FC
Before: Shapiro, P.J., and Borrello and O'Brien, JJ.
Per Curiam
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL 750.317; second-degree arson, MCL 750.73(1); fourth-degree arson, MCL 750.75(1)(a); and tampering with evidence, MCL 750.483a(6)(a). Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 65 to 100 years' imprisonment for his second-degree murder conviction, 15 to 20 years' imprisonment for his second-degree arson conviction, three to five years' imprisonment for his fourth-degree arson conviction, and 7 to 10 years' imprisonment for his tampering with evidence conviction. Defendant also challenges the trial court's orders denying his postconviction motions for resentencing and for a new trial or a Ginther hearing on the basis of ineffective assistance of counsel. We affirm.
Defendant was charged with first-degree felony murder, MCL 750.316(1)(b), but was convicted of the lesser included offense of second-degree murder. Defendant also was charged with one count of carjacking, MCL 750.529a, but was acquitted by the jury of that charge.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arose from defendant's murder of the victim and his subsequent destruction of evidence by disposing of her body in the Flint River and burning her car, which also resulted in the burning of an abandoned house near the burning vehicle. Defendant was in a dating relationship with the victim and lived with her in her trailer in Homer, Michigan. Also in the home were a number of common and exotic pets, including dogs and raccoons. The victim supported defendant financially and provided him with transportation. According to defendant, he repaid the hospitality with hard labor around the trailer and property. In March 2015, the victim added coverage to a vehicle she owned, and ten days later, she and defendant were in a single-car accident in that vehicle. The victim was permitted to rent a red 2015 Fiat under her insurance policy. The automobile in the accident was totaled, and the victim was paid $3, 600 for the replacement value.
Days after receiving that insurance payment, the victim was killed by blunt force trauma to the head and chest, along with strangulation. On May 1, 2015, with cash in hand, defendant drove in the Fiat to Flint, Michigan, where he had friends who used crack-cocaine. Before noon on that day, defendant spoke with Donald Henshaw, showed him the victim's body in the trunk, and purchased a significant amount of crack-cocaine. Defendant and Henshaw used drugs over the course of the day. Eventually, defendant left in the Fiat and drove to see Casey Hager, formerly Casey Tost, who he also knew to use crack-cocaine. When he arrived, Casey introduced defendant to her husband, Ronald Hager, using a false name. Defendant did not correct her.
For the remainder of May 1, 2015, and much of May 2, 2015, defendant and Casey purchased and used crack-cocaine. On the evening of May 2, 2015, defendant drove Casey to the home of her daughter, Rian Tost, who borrowed money from Casey. Rian testified that she believed the money actually came from the man with whom Casey had arrived because Casey never provided Rian $200 before. After leaving Rian's home, defendant asked Casey if she knew how to access the Flint River. Casey directed defendant to a remote location where a car could get close to the river. Once they arrived, defendant exited the Fiat and walked around the back. Casey, believing defendant was planning to throw trash in the river, got out of the car to help. When she walked to the back of the vehicle, however, she noticed the victim's body covered with blankets and sweatpants. Casey testified that she refused to help defendant, even after he threatened to kill her and Ronald with a syringe, so defendant moved the victim's body from the Fiat to the Flint River by himself. He and Casey then drove back to her home and continued to use crack-cocaine.
The next morning, defendant left Casey's home in the Fiat. Michael McBean, who happened to be driving down a main street about one block from Casey's home, saw a man he later identified as defendant setting fire to a red Fiat. The fire from the car eventually spread to a nearby abandoned house, completely destroying both the Fiat and the house. Defendant returned to Casey's home on foot. Shortly after, Casey recalled hearing sirens and seeing smoke, but did not investigate. A number of the victim's personal items, including prescription bottles with her name on them, were found in the trashcan behind Casey's home, which allegedly were placed there by defendant. The victim's wallet and driver's license were found in the parking lot of a nearby church, about one block from Casey's home.
On the night of May 3, 2015, Casey and defendant went to a motel to party and use more crack-cocaine. They drove there with Ron Greenway and Janel Simons. The next morning, Casey's husband picked up Casey from the motel and drove her home. Defendant had to appear in court that day, and afterwards Greenway drove him to the victim's trailer in Homer. When he arrived at the trailer, police were performing a wellness check after the burned Fiat had been connected to the victim. Defendant agreed to partake in an interview at the police station. Defendant was arrested at the end of the interview. Casey also spoke to police the same day, May 4, 2015, and ultimately led them to the victim's body. The body was removed from the river and sent for an autopsy, which revealed that the victim's stomach contained partially digested food. The doctor performing the autopsy testified that the victim likely died within four to six hours after ingesting the food.
About 13 months later, the defense and the prosecution were prepared to begin trial. Just before that, however, defendant moved to suppress his statement to the police, claiming a violation of his rights under Miranda. The trial court granted the motion after an evidentiary hearing. After an interlocutory appeal, remand proceedings, and a second interlocutory appeal, the trial court's decision was ultimately affirmed. Trial commenced about three months after the appeals ended.
Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966).
During trial, evidence was introduced establishing that defendant's DNA was found under the fingernails of the victim, and photographs showed that defendant's arms and hands were scratched and scabbed when he was arrested. The police also found a small spot of the victim's blood on a pillowcase in her trailer, and found evidence of cooked food in the trailer that matched the food in the victim's stomach. The prosecution also elicited testimony from two individuals, Caesar Cooper and Jason Malm, who had shared a jail cell with defendant while he waited for trial. They both testified that defendant confessed to killing the victim and disposing of her body.
The defense engaged in a multipronged attack on the prosecution's case, which involved challenging witnesses' memories and eyewitness identification considering the lengthy delay before trial, undermining the credibility of the jailhouse witnesses, questioning the absence of other DNA testing, and shifting blame to Casey and Henshaw as the likely perpetrators of the crime. Defendant decided to testify on his own behalf, and presented a story in which the victim left Casey's home with Casey on May 1, 2015, and never returned. He acknowledged his testimony was significantly different from what he said to the police on May 4, 2015.
The jury convicted defendant as already noted, and the trial court sentenced defendant as reflected above. This appeal followed.
While the appeal was pending, defendant moved the trial court for resentencing, arguing that Offense Variable (OV) 2 had been improperly scored, resulting in a reduction in the minimum sentencing guidelines range. Defendant also moved for a new trial or a Ginther hearing on the basis of ineffective assistance of counsel. Defendant contended that his trial counsel should have raised a speedy-trial claim considering the lengthy pretrial delay. Defendant also asserted that trial counsel was ineffective for failing to introduce beneficial evidence, to object to hearsay testimony, to object to improper jury instructions, and to request additional instructions. In written opinions and orders, the trial court denied defendant's motions for resentencing and for a new trial or a Ginther hearing. Defendant then moved this Court to remand for a Ginther hearing, which this Court denied without prejudice. The case is now before us for plenary review.
People v Barritt, unpublished order of the Court of Appeals, entered December 17, 2020 (Docket No. 352253).
II. INEFFECTIVE ASSISTANCE OF COUNSEL
On appeal, defendant continues to argue that his trial counsel was ineffective in a number of ways such that we must either reverse his convictions and dismiss the charges against him or remand for a Ginther hearing. We disagree.
A. PRESERVATION AND STANDARDS OF REVIEW
Defendant preserved his claim of ineffective assistance of counsel when he "move[d] the trial court for a new trial or a Ginther hearing." People v Jackson (On Reconsideration), 313 Mich.App. 409, 431; 884 N.W.2d 297 (2015). Despite preserving the issue, "because no Ginther hearing was held, our review is limited to mistakes apparent on the record." People v Payne, 285 Mich.App. 181, 188; 774 N.W.2d 714 (2009).
"The denial of effective assistance of counsel is a mixed question of fact and constitutional law, which are reviewed, respectively, for clear error and de novo." People v Schrauben, 314 Mich.App. 181, 189; 886 N.W.2d 173 (2016) (quotation marks and citation omitted). A trial court's factual findings related to a speedy-trial claim are reviewed for clear error. People v Williams, 475 Mich. 245, 260; 716 N.W.2d 208 (2006). A trial court's decision whether to grant an evidentiary hearing, such as a Ginther hearing, is reviewed for an abuse of discretion. People v Unger, 278 Mich.App. 210, 216-217; 749 N.W.2d 272 (2008). An abuse of discretion occurs when the court chooses an outcome outside the range of reasonable and principled outcomes. Id. at 217.
B. APPLICABLE LAW
"Criminal defendants have a right to the effective assistance of counsel under the United States and Michigan Constitutions." Schrauben, 314 Mich.App. at 189-190, citing U.S. Const, Am VI; Const 1963, art 1, § 20. "However, effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." Schrauben, 314 Mich.App. at 190. "[I]n order to receive a new trial on the basis of ineffective assistance of counsel, a defendant must establish that 'counsel's representation fell below an objective standard of reasonableness' and that '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; 821 N.W.2d 288 (2012), quoting Strickland v Washington, 466 U.S. 668, 688, 694; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). "When reviewing defense counsel's performance, the reviewing court must first objectively 'determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'" Jackson, 313 Mich.App. at 431, quoting Strickland, 466 U.S. at 690. "Next, the defendant must show that trial counsel's deficient performance prejudiced his defense-in other words, that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Jackson, 313 Mich.App. at 431, quoting Vaughn, 491 Mich. at 669.
This Court will not find trial counsel to be ineffective when an objection would have been futile; nor will it second-guess matters of trial strategy. People v Thomas, 260 Mich.App. 450, 457; 678 N.W.2d 631 (2004); People v Rockey, 237 Mich.App. 74, 76-77; 601 N.W.2d 887 (1999). The defendant "bears the burden of demonstrating both deficient performance and prejudice." People v Carbin, 463 Mich. 590, 600; 623 N.W.2d 884 (2001). Consequently, the defendant "necessarily bears the burden of establishing the factual predicate for his claim.'" Id.
In Michigan, a Ginther hearing is a method by which "[a] defendant who wishes to advance claims that depend on matters not of record can properly . . . seek at the trial court level an evidentiary hearing for the purpose of establishing his claims . . . ." People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973). A Ginther hearing is not warranted where the "defendant has not set forth any additional facts that would require development of a record to determine if defense counsel was ineffective . . . ." See People v Williams, 275 Mich.App. 194, 200; 737 N.W.2d 797 (2007).
C. SPEEDY TRIAL
Defendant first contends trial counsel was ineffective for failing to raise a speedy-trial claim before the trial court.
"Both the United States Constitution and the Michigan Constitution guarantee a criminal defendant the right to a speedy trial." People v Waclawski, 286 Mich.App. 634, 664-665; 780 N.W.2d 321 (2009), citing U.S. Const, Am VI; Const 1963, art 1, § 20. "We enforce this right both by statute and by court rule." Williams, 475 Mich. at 261, citing MCL 768.1; MCR 6.004(A). "[T]he federal and state constitutions and Michigan statutory law guarantee criminal defendants a speedy trial without reference to a fixed number of days." People v Rivera, 301 Mich.App. 188, 193; 835 N.W.2d 464 (2013) (quotation marks and citation omitted). "Michigan courts apply the four-part balancing test articulated in Barker v Wingo, 407 U.S. 514; 92 S.Ct. 2182; 33 L.Ed.2d 101 (1972), to determine if a pretrial delay violated a defendant's right to a speedy trial." People v Cain, 238 Mich.App. 95, 112; 605 N.W.2d 28 (1999). The four factors are: "(1) the length of delay, (2) the reason for delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant." Williams, 475 Mich. at 261-262.
For the first factor, "the time for judging whether the right to a speedy trial has been violated runs from the date of the defendant's arrest." Rivera, 301 Mich.App. at 193 (quotation marks and citation omitted). "A delay of more than eighteen months is presumed to be prejudicial and the burden is on the prosecution to prove lack of prejudice." People v Simpson, 207 Mich.App. 560, 563; 526 N.W.2d 33 (1994). The parties agree that the delay between defendant's arrest in May 2015 and his trial commencing in October 2019 was 53 months. They also agree that this lengthy delay resulted in a presumption of prejudice, moving the burden to the prosecution to prove lack of prejudice. Id. "Under the Barker test, 'the presumptively prejudicial delay triggers an inquiry into the other factors to be considered in the balancing of the competing interests to determine whether a defendant has been deprived of the right to a speedy trial.'" Williams, 475 Mich. at 262, quoting People v Wickham, 200 Mich.App. 106, 109-110; 503 N.W.2d 701 (1993). "Although the length of delay in this case is considerable, there is no set number of days between a defendant's arrest and trial that is determinative of a speedy trial claim." Waclawski, 286 Mich.App. at 665. Thus, we turn the remaining factors.
The second factor requires consideration of the cause of the delays. "In assessing the reasons for delay, this Court must examine whether each period of delay is attributable to the defendant or the prosecution." Id. at 666. "Although delays inherent in the court system, e.g., docket congestion, are technically attributable to the prosecution, they are given a neutral tint and are assigned only minimal weight in determining whether a defendant was denied a speedy trial." Williams, 475 Mich. at 263 (quotation marks and citation omitted). Lengthier delays are more tolerable in complex cases. Barker, 407 U.S. at 530-531.
The parties agree that the four months of the delay due to defendant's request for a competency examination were attributable to the defense. They also agree that about 10 months of the delay were a result of general docket congestion and other delays attributable to the prosecution, although in a neutral tint. Williams, 475 Mich. at 263. Another five months of the delay was due to stipulations by the parties to pushback trial so that they could make additional preparations. The prosecution contends that these five months should not be attributable to either party, while defendant contends that these five months were the result of delays inherent in the court system that must be attributed to the prosecution in a neutral tint. The trial court, referencing requests for adjournment by defendant for obtaining DNA testing, participating in a polygraph, and getting transcripts, attributed those five months of delay to the defense. A review of the record confirms that defendant requested delays for the issues cited by the trial court, and thus, the trial court did not clearly err in finding those five months of delays were attributable to the defense. Id. at 260. Accordingly, for these 19 months of the 53-month delay, only 10 were attributable to the prosecution in a neutral tint.
The crux of defendant's speedy-trial claim concerns the remaining 34 months of the delay, which were due to the prosecution's interlocutory appeals. Defendant contends that these 34 months should be attributed to the prosecution, while the prosecution contends that these months should be removed from the calculation entirely.
Defendant contends that the prosecution's interlocutory appeals should count against the prosecution because the appeals were not successful. In support of this argument defendant cites caselaw holding that "the time the prosecution takes to successfully pursue an interlocutory appeal is 'taken out of the calculation.'" Waclawski, 286 Mich.App. at 667, quoting People v Missouri, 100 Mich.App. 310, 321; 299 N.W.2d 346 (1980). Defendant focuses on the use of the word "successfully," and asserts that, because the prosecution's interlocutory appeals were not successful, they are not "taken out of the calculation," and must count against the prosecution.
Upon a more in-depth view of caselaw on the issue, though, it is clear that defendant has misunderstood the law. While both Waclawski and Missouri use the term "successfully" when discussing an interlocutory appeal, this Court in Missouri, 100 Mich.App. at 321, cited to a different case for the proposition, People v Stewart, 61 Mich.App. 167, 174; 232 N.W.2d 347 (1975). The panel in Stewart cited Michigan Supreme Court precedent and stated the rule in more general terms, explaining that "[t]he taking of an appeal by the state constitutes a good cause for delay when within reasonable limits, and time consumed on appeal cannot be considered as denying a speedy trial." Id., citing People v Den Uyl, 320 Mich. 477; 31 N.W.2d 699 (1948). In Den Uyl, 320 Mich. at 489-490, our Supreme Court provided more guidance, opining "[o]ne of the circumstances which will constitute good cause for delay, again within reasonable limits of time, is the taking of an appeal, whether by the State or another party." The Court continued, "[t]he right of speedy trial should not operate to deprive the State of a reasonable opportunity of fairly prosecuting criminals." Id. at 491. In addressing an interlocutory appeal by a defendant, our Supreme Court provided similar reasoning, stating that the "[d]efendant certainly had a right to appeal but time reasonably consumed on appeal cannot be considered as in derogation of a speedy trial." People v Chism, 390 Mich. 104, 113; 211 N.W.2d 193 (1973). This understanding of how to address interlocutory appeals, as opposed to only considering whether the appeal was successful, comports with precedent from the United States Supreme Court:
Given the important public interests in appellate review, it hardly need be said that an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay. In assessing the purpose and reasonableness of such an appeal, courts may consider several factors. These include the strength of the Government's position on the appealed issue, the importance of the issue in the posture of the case, and- in some cases-the seriousness of the crime. For example, a delay resulting from an appeal would weigh heavily against the Government if the issue were clearly tangential or frivolous. Moreover, the charged offense usually must be sufficiently serious to justify restraints that may be imposed on the defendant pending the outcome of the appeal. [United States v Loud Hawk, 474 U.S. 302, 315-316; 106 S.Ct. 648; 88 L.Ed.2d 640 (1986) (citations omitted).]
In light of this caselaw, it is clear that defendant's statement of law regarding the requirement of an interlocutory appeal being successful to be removed from the speedy-trial consideration is incorrect. While a successful appeal is certainly an indication that the time spent on the appeal was reasonable, the caselaw does not automatically require that unsuccessful appeals be counted against the prosecution. The question, instead, is whether the time was "reasonably consumed on appeal," because then it "cannot be considered as in derogation of a speedy trial." Chism, 390 Mich. at 113. In analyzing that question as related to interlocutory appeals by the prosecution, courts should consider the seriousness of the offense, the strength of the prosecution's position in the appeals, and whether the appeals "were clearly tangential or frivolous." Loud Hawk, 474 U.S. at 315-316.
Here, the trial court's decision to remove from the speedy-trial calculation the delays caused by the prosecution's interlocutory appeals was correct. First, there can be little dispute as to the seriousness of the charges against defendant-he was to be tried for first-degree felony murder, carjacking, second-degree arson, fourth-degree arson, and tampering with evidence. Considering those grave charges, along with the prosecution's legitimate interest in being able to fairly prosecute defendant, this factor weighs in favor of removing the interlocutory appeals from the calculation. Id.; Den Uyl, 320 Mich. at 491.
The second and third factors discussed in Loud Hawk, 474 U.S. at 315-316, are the most relevant to the present appeal and are aptly combined in this case. Indeed, the parties focus most of their arguments on whether the prosecution had a strong position on appeal and whether the appeals were frivolous. Shortly before trial was set to begin the first time, defendant moved the trial court to suppress his statements made to police during the May 4, 2015 interrogation. Although defendant did not make any confessions during the interrogation, he did, as would become clear during trial, make statements that directly contradicted the version of events that he would present to the jury. The most pertinent example of this concerned defendant's account of the victim's whereabouts on May 1, 2015. During the police interrogation, defendant said that the victim did not spend time at Casey's, but instead drove to Bay City to look for a new car and then planned to return to her home in Homer. At trial, however, defendant testified that the victim did spend time with Casey on May 1, 2015, and he ultimately sought to blame Casey for the victim's murder. Obviously, if the victim did not interact with Casey in any manner like defendant told police during the interview, then Casey did not have the opportunity or motive (which defendant suggested was Casey seeing that the victim had a significant amount of cash in her purse) to murder the victim. It is clear, then, why defendant desired to have his statements suppressed, as well as why the prosecution believed that the statements were important.
After an evidentiary hearing, the trial court granted defendant's motion to suppress his statement. The trial court relied heavily on a statutory definition of a "place of detention" when determining that defendant was in custody during the interview, entitling him to Miranda warnings. People v Barritt, 318 Mich.App. 662, 670; 889 N.W.2d 437 (2017) (Barritt I), vacated in part 501 Mich. 872 (2017). On appeal, this Court opined that the trial court was incorrect to rely on the statutory definition when analyzing the issue, but decided, in a split decision, that the trial court had reached the correct result in finding defendant to be in custody during the interrogation. Id. at 671. One of the judges on the panel disagreed with the majority's analysis, agreed with the prosecution's argument that defendant was not in custody, and issued a dissent. Id. at 684 (K. F. Kelly, J., dissenting). The prosecution then appealed our Supreme Court, who entered an order vacating the portions of this Court's opinion concluding the trial court reached the correct result but for the wrong reason. People v Barritt, 501 Mich. 872, 872 (2017). The Court opined that the trial court should have been directed to reconsider the issue using the proper analysis in the first instance, and remanded the case to the trial court for such proceedings. Id.
During the remand proceeding, the trial court analyzed the issues once again, cited the appropriate caselaw, and reached the same conclusion-defendant's statement's during the interrogation had to be suppressed because he was in custody and did not receive Miranda warnings. People v Barritt, 325 Mich.App. 556; 926 N.W.2d 811 (2018) (Barritt II). The prosecution then filed a second interlocutory appeal, which again resulted in a split decision from this Court. Id. The majority determined that the trial court properly concluded that defendant was in custody and that his statements should be suppressed, id. at 584, while a dissenting judge would have concluded that defendant was not in custody, so his statements should not be suppressed, Barritt II, 325 Mich.App. at 597 (Boonstra, J., dissenting).
The prosecution, once again, applied for leave to appeal with our Supreme Court. This time, the Court denied leave to appeal. People v Barritt, 504 Mich. 888 (2019). However, two justices of the Michigan Supreme Court dissented from the order denying leave, noting that they believed there were "serious concerns [] regarding whether defendant was subjected to a custodial interrogation that would trigger a right to be informed of Miranda rights . . . ." Barritt, 504 Mich. at 891 (Zahra, J., dissenting).
From that run down of the appellate history in this case, it is obvious that the prosecution's appeal was not "frivolous." Loud Hawk, 474 U.S. at 315-316. Moreover, while the prosecution did not have the prevailing position on appeal, the appellate history does not suggest that the prosecution's position was weak. Id. Indeed, in the first appeal, the prosecution correctly showed that the trial court had relied on the wrong legal framework when analyzing whether defendant was in custody for purposes of Miranda. This resulted in the trial court's order of suppression being vacated and the case being remanded for the trial court to conduct the appropriate analysis. Although the trial court ultimately reached the same conclusion, which was affirmed on appeal, the decisions of both appellate courts were split on the issue. In the second appeal, which reviewed the trial court's corrected legal analysis, one judge of the Court of Appeals and two justices of the Michigan Supreme Court agreed with the prosecution. While that was not sufficient to be considered successful, it is clear that the prosecution's case was strong, and certainly not "frivolous." Loud Hawk, 474 U.S. at 315-316.
In sum, considering the seriousness of the charges against defendant, the importance of his statements in undermining the most important parts of his defense, the prosecution's relatively strong position related to the issues on appeal, and the lack of frivolity in the appeals, the record fully supports the trial court's determination that the prosecution's interlocutory appeals should be removed from the calculation as related to the speedy-trial violation. Id.; Den Uyl, 320 Mich. at 489-490. In other words, because the time in question was "reasonably consumed on appeal," it "cannot be considered as in derogation of a speedy trial." Chism, 390 Mich. at 113. Consequently, of the 53-month delay, only about 10 months were attributable to the prosecution, and only in a neutral tint. The remaining 43 months contained 34 months that were removed from the calculation, and nine months attributable to the defense.
The third factor of a speedy-trial analysis relates to the defendant's assertion of the right to a speedy trial. Because defendant has raised this issue as a claim that his trial counsel was ineffective for failing to assert the right, the present analysis must consider whether "there is a reasonable probability that, but for counsel's" decision not to assert the speedy-trial claim, "the result of the proceeding would have been different." Vaughn, 491 Mich. at 669 (quotation marks and citation omitted). Thus, this factor is not relevant to the present appeal.
The fourth and final factor to be considered is the prejudice to the defense caused by the delay. The United States Supreme Court has stated "that unreasonable delay between formal accusation and trial threatens to produce more than one sort of harm, including oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the [accused's] defense will be impaired by dimming memories and loss of exculpatory evidence." Doggett v United States, 505 U.S. 647, 654; 112 S.Ct. 2686; 120 L.Ed.2d 520 (1992) (quotation marks and citation omitted; alteration in original). "Prejudice to the defense is the more serious concern, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Williams, 475 Mich. at 264. Indeed, our Supreme Court has held "the prejudice prong of the Barker test may properly weigh against a defendant incarcerated for an even longer period if his defense is not prejudiced by the delay." Williams, 475 Mich. at 264, citing Chism, 390 Mich. at 115.
In an effort to rebut the presumption of prejudice caused by the 53-month delay, the prosecution asserts that the defense actually benefited from the lengthy delay. The prosecution points out that two of its witnesses, Greenway and Carol Wienski (the victim's mother), passed away before trial commenced. Moreover, the prosecution cites to the defense's repeated use of witnesses' dimming memories as a reason for cross-examination. The defense repeatedly was able to cross-examine witnesses regarding damaging testimony that had changed from the testimony provided at preliminary examination or in police statements. The defense also used the lengthy pretrial delay to challenge eyewitness identification of defendant. Primarily, the defense questioned whether McBean could actually identify defendant after seeing him 41/2 years ago, or whether McBean was relying on his own Internet research of the case and the fact that defendant was sitting at the defense table.
Defendant, on the other hand, only generally cites the dimming memories of witnesses, but does not suggest how that hurt his defense. Indeed, he presents nothing to contradict the prosecution's claim, which is supported by the record, that the potential deterioration of witnesses' memories actually helped the defense. Thus, this weighs against the defense.
Defendant next cites "prejudice to his person," Williams, 475 Mich. at 264, in the form of pretrial incarceration in Genesee County Jail. Defendant claims, generally, that living in Genesee County Jail caused him to "suffer," and cites a newspaper article suggesting that the jail had "dark conditions." While there is little reason to doubt that living in Genesee County Jail was not ideal, defendant has not identified exactly how it harmed him personally. For example, in Williams, 475 Mich. at 264, the defendant cited mental-health issues, including anxiety, caused by being in jail for 19 months. Even though the Court in Williams believed the defendant's claim of anxiety caused by incarceration, it held that such was not determinative without proof of harm to the defense. Id. Consequently, defendant's general citation to poor conditions inside the Genesee County Jail, without any indication regarding how those conditions affected him personally, is less convincing than the defendant in Williams, which also was insufficient to establish a speedy-trial violation.
Defendant's final claim of prejudice caused by the delay relates to Malm's testimony during trial. Malm, who was a cellmate of defendant, testified that defendant made several confessions to the charged crimes while they shared a jail cell. Importantly, defendant was Malm's cellmate in late 2018, and early 2019, a time period defendant claims he would not have been in jail absent the lengthy delay before trial. Although this is a closer call than the previous instances of prejudice cited by defendant, a review of the record shows that any prejudice to the defense caused by Malm was minimal because (1) his testimony was cumulative to defendant's other cellmate, Cooper, who shared a cell with defendant in 2015 before any delay and (2) trial counsel thoroughly cross-examined Malm. With respect to the first reason, even without Malm's testimony, the jury would have been presented with the testimony of Cooper, who, like Malm, stated that defendant confessed to killing the victim and burning her car. As for the second reason, during cross-examination of Malm, defendant's trial counsel seriously undercut Malm's credibility by referencing a letter written by Malm in which he wrote down defendant's case number. Malm stated that he knew the case number because he remembered it when defendant said it in the process of his confession. However, trial counsel had also established, via testimony from defendant, that trial counsel had given defendant his case files to review while he was in jail. Thus, trial counsel's cross-examination of Malm established that he almost certainly obtained his information about defendant's case, including the case number, from the case file that happened to be in the cell Malm shared with defendant. Considering those facts, any prejudice to defendant caused by Malm's testimony was minimized extensively.
In sum, defendant's claims of prejudice included a general citation to the condition of the Genesee County Jail and the deterioration of witnesses' memories, and a reference to Malm's testimony. The record shows, however, that the witnesses' memories fading actually benefited the defense, and defendant failed to identify how the conditions of Genesee County Jail personally affected him. At best, defendant's assertion of prejudice as related to Malm merely lessened the advantage defendant earned by the deaths of Greenway and Carol, and his ability to challenge fading witness memories and identifications on cross-examination. Therefore, overall, the final Baker factor favored the prosecution. Williams, 475 Mich. at 264.
To conclude, although the 53-month delay was presumptively prejudicial, defendant's constitutional right to a speedy-trial was not violated where only about 10 months of the delay were attributable to the prosecution in a neutral tint, the case was complex and contained serious charges, and defendant did not suffer actual prejudice to his defense. Id. at 262-264. This decision is supported by a published decision of this Court, in which the panel determined that a delay of about 41/2 years, like this case, was not a speedy-trial violation when any delay attributable to the prosecution was in a neutral tint, some of the delays were caused by motions of the defense, and the defendant only cited generally to "the loss of several witnesses" without "identify[ing] how those witnesses would have aided in his defense." Simpson, 207 Mich.App. at 563-564. In light of that published caselaw and the above analysis, we now reach the same conclusion in this case.
For the reasons just discussed, any assertion by trial counsel of the right to a speedy trial and a request for dismissal of the charges would have been denied. Because it would have been denied, raising the issue would have been futile, and trial counsel cannot be found to be ineffective for failing to make a futile or meritless claim. People v Miller, 326 Mich.App. 719, 731-732; 929 N.W.2d 821 (2019) ("Counsel is not ineffective for failing to make futile objections."). Consequently, defendant's assertion that trial counsel was ineffective for failing to raise the speedy-trial claim is without merit. Id.
D. FAILURE TO INTRODUCE FAVORABLE EVIDENCE
For all of his remaining allegations of ineffective assistance of counsel, defendant argues only that this Court should remand for a Ginther hearing. In this regard, defendant first asserts that a Ginther hearing was warranted to develop his claim that his trial counsel failed to introduce beneficial evidence at trial.
Defendant argues that trial counsel should have introduced documentary evidence of his shoulder injury and called as witnesses Robert Coleman, who lived in the other half of Casey's duplex, and Janel. "Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute its judgment for that of counsel regarding matters of trial strategy." People v Muhammad, 326 Mich.App. 40, 66; 931 N.W.2d 20 (2018) (quotation marks and citation omitted; alteration in original).
With respect to his claims about medical records, defendant has failed to bear his "burden of establishing the factual predicate for his claim." Carbin, 463 Mich. at 600. At trial, defendant testified that he injured his shoulder at some point in the past, which resulted in an application for worker's compensation benefits. His reason for presenting such testimony was to contradict Casey's allegation that he moved the victim's body from the Fiat to the Flint River by himself. In other words, defendant wished the jury to believe that he was not strong enough, with an injured shoulder, to move the body alone. In his motion for a Ginther hearing and in his brief on appeal, defendant asserts that his medical records establishing the shoulder injury would have made a difference at trial. The problem with the argument, though, is that defendant has never provided those medical records or presented any information to show that the medical records actually exist. Even in his affidavit filed with his motion for a Ginther hearing in the trial court, defendant did not aver that the medical records related to his shoulder existed. Consequently, given defendant's failure to support his claim with evidentiary proof, he failed to bear his "burden of establishing the factual predicate for his claim." Id. Moreover, in failing to give any indication that such medical records exist, "defendant has not set forth any additional facts that would require development of a record to determine if defense counsel was ineffective . . . ." Williams, 275 Mich.App. at 200. Thus, a Ginther hearing regarding this issue was not necessary, and the trial court did not abuse its discretion in denying defendant's request for one. Unger, 278 Mich.App. at 216-217.
Defendant also contends that the trial court should have granted a Ginther hearing related to his claims that trial counsel should have called Janel and Coleman as witnesses during the trial. Recall that decisions related to which witnesses to call are presumed to be a matter of trial strategy. Muhammad, 326 Mich.App. at 66. As to his argument related to Janel, defendant fails to address trial counsel's expressed desire to call Janel as a witness. The problem, as established during trial, was that Janel could not be found to be brought to court to testify. Thus, to the extent defendant's argument relies on a presumption that trial counsel chose not to call Janel as a witness, such an argument is not only unsupported by the record, but is belied by the record. Considering that trial counsel expressed an interest in calling Janel as a witness, defendant has failed to bear his "burden of establishing the factual predicate for his claim." Carbin, 463 Mich. at 600.
In his brief on appeal, defendant directs our attention to trial counsel's statement during trial that he was unaware of Janel's removal from the prosecution's list of endorsed witnesses and that he should have noticed the change when the amended witness lists were served on him. Assuming trial counsel's failure to recognize the change in the witness list was objectively unreasonable, Vaughn, 491 Mich. at 669, defendant's claim still fails because he has not provided any citation to the record or additional evidence to suggest trial counsel's error changed the outcome of trial, Jackson, 313 Mich.App. at 431. Despite acknowledging trial counsel's failure to notice her removal from the list of endorsed witnesses, defendant fails to consider the reason for Janel's removal. Pertinently, the prosecution explained it had been unable to locate Janel to bring her to trial, and thus, removed her from the list of endorsed witnesses. Although defendant presented to the trial court his affidavit regarding Janel's probable testimony, he made no allegations that Janel could have been found and brought to court. In other words, defendant did not present any evidence of trial counsel's ability to locate and subpoena Janel as a witness. Further, in light of the prosecution's inability to locate Janel despite its efforts to do so, the record simply does not support that Janel was available to testify. Consequently, any error with respect to trial counsel's failure to recognize Janel's removal from the list of endorsed witnesses could not have changed the outcome of trial when Janel simply was not available to testify. Because defendant failed to fulfill the second prong of Strickland, 466 U.S. at 694, and presented no argument or evidence that a Ginther hearing would have allowed him to establish a factual basis for the second prong, the trial court did not abuse its discretion in denying defendant's motion for such a hearing. Unger, 278 Mich.App. at 216-217; Williams, 275 Mich.App. at 200.
As a final note on defendant's argument related to Janel, defendant did not present information or allegations supporting that her testimony, even if obtainable, would have changed the outcome of trial. For this reason as well, defendant could not hope to fulfill the second prong of Strickland, 466 U.S. at 694. Defendant contends that Janel would have undermined Casey's already damaged credibility. However, in his affidavit, defendant averred that Janel was only present with Casey during time spent at the Wee Pines Motel on the night of May 3, 2015, into the early morning hours of May 4, 2015. Notably, for that period of time, both defendant and Casey testified that they did crack-cocaine and partied at the Wee Pines Motel. They also agreed that Casey left in the morning. While defendant notes that Janel also was present at the motel, he does not explain how her testimony about the events at the motel would have undermined Casey's testimony. This is especially troubling considering the similarities between defendant's testimony and Casey's testimony as it relates to the events at the Wee Pines Motel. In other words, if Janel's testimony would have belied Casey's version of events, it is difficult to see how such testimony would not also harm defendant's credibility. Moreover, defendant does not allege that Janel could have undermined the most important portion of Casey's testimony-that she saw defendant move the victim's dead body from the Fiat to the Flint River on the night of May 2, 2015. Because Janel could not possibly challenge the most damaging testimony from Casey, and because any disagreement with Casey's testimony would likely undermine defendant's credibility as well, defendant has not shown how Janel's purported testimony would have changed the outcome of trial. Jackson, 313 Mich.App. at 431. Further, because defendant has not shown how a Ginther hearing could lead to additional evidence supporting his claims, the trial court did not abuse its discretion in denying his postconviction motion for the evidentiary hearing. Unger, 278 Mich.App. at 216-217; Williams, 275 Mich.App. at 200.
Next, defendant argues the trial court should have granted his motion for a Ginther hearing to develop his claim related to trial counsel's alleged failure to call Coleman as a witness. Trial counsel's decision to not call Coleman as a witness is presumed to be a matter of trial strategy, which this Court typically will not second guess. Muhammad, 326 Mich.App. at 66. Defendant contends that Coleman, who lived in the other half of the duplex in Casey's home, would have provided testimony to undermine Casey's credibility. In his brief on appeal, however, defendant makes no suggestion regarding what Coleman's testimony would have been or how exactly it would have challenged Casey's version of events. Defendant's failure to present such an argument, or evidence supporting it, requires a holding that he failed to bear his "burden of establishing the factual predicate for his claim." Carbin, 463 Mich. at 600. Moreover, defendant does not suggest what testimony might be elicited from Coleman during a Ginther hearing, and consequently, there is nothing to suggest the trial court abused its discretion in denying his request for the hearing. Unger, 278 Mich.App. at 216-217; Williams, 275 Mich.App. at 200.
E. FAILURE TO OBJECT TO HEARSAY TESTIMONY
Next, defendant argues that the trial court should have granted a Ginther hearing related to his claim that his trial counsel was ineffective for failing to object to hearsay testimony from Sergeant Douglas Clayton Hite.
Defendant contends that Sergeant Hite offered inadmissible hearsay testimony when he stated that Casey told him that defendant placed items in the trashcan behind her house. Those items, which included prescription pill bottles belonging to the victim, provided an inference that defendant was attempting to dispose of evidence of his crimes. The contested testimony given by Sergeant Hite during direct examination by the prosecution was as follows:
Q. And then while searching [Casey's home did] you find anything inside?
A. Nothing-nothing inside and we asked if Casey, you know, if he had brought anything. She said he did bring something within the home but he had also taken something out back, some items out back and thrown them away in the garbage can behind the home.
Q. And who's the he that she's talking about?
A. [Defendant].
During Casey's testimony, however, she stated that she had not placed the items in the trashcan outside of her home, and that she did not know who did. During redirect examination of Sergeant Hite, the prosecution once again enquired about the items in the trash. Sergeant Hite repeated that Casey told him that defendant placed the items in the trash. This second time, defendant's trial counsel made a hearsay objection, but the trial court overruled it, stating, "I'm going to deny your objection. The jury heard both your question and the answer and [the prosecution's] question and the answer and it's their job to judge the credibility and weight and credibility [sic] of the test-of the witness' testimony."
When defendant raised this issue in his motion for a new trial or a Ginther hearing before the trial court, the court determined that it would have denied the hearsay objection-like it did when trial counsel raised it during redirect-and so it would have been futile for trial counsel to raise the objection. The trial court accordingly reasoned that, because trial counsel could not be found ineffective for failing to make a futile objection, defendant's request for a new trial or a Ginther hearing should be denied.
This reasoning is flawed. Following this reasoning, a lower court could conclude that counsel was not ineffective, despite failing to raise a meritorious objection, because the court would have overruled the objection anyway, making the objection futile. In effect, then, a meritorious objection would actually be a futile objection. Such a bizarre result seems untenable, and we decline to adopt such reasoning.
A more sensible approach, in our opinion, is whether the trial court should have sustained such an objection if it were raised. In this case, Sergeant Hite's testimony was clearly hearsay without an exception, so an objection by counsel, if raised, should have been sustained. See MRE 801(c) (" 'Hearsay' is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."); People v Solloway, 316 Mich.App. 174, 199; 891 N.W.2d 255 (2016) ("Hearsay evidence is inadmissible unless it falls within one of the exceptions listed in the Michigan Rules of Evidence."). It was objectively unreasonable for trial counsel to fail to raise this meritorious objection.
The prosecution does not contest that Sergeant Hite's testimony was inadmissible hearsay, but rather contends that defendant's trial counsel was exercising sound trial strategy by choosing not to object, which would draw more attention to the damaging testimony. The prosecution is correct that there are times when an objection might be better off withheld, even if it would have been legally meritorious. See Unger, 278 Mich.App. at 242 ("As an experienced attorney, lead defense counsel was certainly aware that there are times when it is better not to object and draw attention to an improper comment.") (Quotation marks and citation omitted). The problem with that argument in this case is, given trial counsel's later objection to the exact same hearsay testimony, it clearly was not counsel's "trial strategy" to avoid objecting the first time. Consequently, in light of trial counsel's later objection, this argument by the prosecution lacks merit.
Despite this conclusion, defendant's claim of ineffective assistance of counsel still fails under the second prong of Strickland, 466 U.S. at 694, because the record does not support that there was a reasonable likelihood that the lack of Sergeant Hite's hearsay testimony at trial would have resulted in an acquittal. Although Casey failed to state that defendant placed the relevant items in the outdoor trash can at her home, an abundance of admissible evidence supported such a conclusion. First, the items in the trashcan were found inside an empty bag of dog food. Casey and Ron testified they did not have any dogs while living at their residence, and neither did Coleman. All of the police officers who went to Casey's house, or somewhere around it, testified that they did not hear any dogs barking. The officers who went inside Casey's home stated that there were no dogs inside. On the other hand, it was well-established that defendant and the victim lived with five or more dogs. Thus, the jury could infer that defendant brought over the dog food bag and the items that were found in it.
Second, Casey and Ron testified that they did not place the dog food bag nor the items found inside of it in the trashcan behind their house. Third, and most importantly, in addition to there being prescription pill bottles with the victim's name on it inside of the trashcan, there also was an item inside the trashcan with defendant's name on it. Specifically, Detective Johnson testified that he found, in the same trashcan as the other pill bottles, "some kind of allergy prescription relief drug with [defendant's] name on it." Casey identified a photograph of the item and stated that it had defendant's name on it but did not belong to her.
In sum, the admissible evidence at trial revealed that prescription bottles with the victim's name on them were found in the trashcan behind Casey's house. While no one was able to testify that defendant actually placed those items there, the circumstantial evidence suggesting as much was overwhelming. Casey and Ron, who lived in the house, stated that they did not do it; the items were found in a dog food bag; no one who lived at the residence had dogs; defendant did have dogs; defendant admitted that he was at Casey's house on the weekend in question; and one of the items in the trash also had defendant's name on it. Even without the hearsay testimony of Sergeant Hite, there seems little chance of the jury concluding that defendant did not put the items in question in the trashcan. Consequently, even if trial counsel had objected and the testimony had been properly rejected as inadmissible hearsay, there is not a reasonable likelihood that the outcome of trial would have changed, rendering this argument by defendant meritless. Jackson, 313 Mich.App. at 431. Moreover, defendant did not present any evidence or argument supporting the need for a Ginther hearing to determine trial counsel's reason for failing to object to Sergeant Hite's testimony or the potential for prejudice. Williams, 275 Mich.App. at 200. Consequently, the trial court's decision to deny the motion for a Ginther hearing was not an abuse of discretion. Unger, 278 Mich.App. at 216-217.
F. JURY INSTRUCTIONS
Next, defendant asserts that the trial court should have granted a Ginther hearing to further develop his claims that trial counsel was ineffective for failing to object to, or request additional, jury instructions.
"A criminal defendant has the right to have a properly instructed jury consider the evidence against him." People v Head, 323 Mich.App. 526, 537; 917 N.W.2d 752 (2018) (quotation marks and citation omitted). "One of the essential roles of the trial court is to present the case to the jury and to instruct it on the applicable law with instructions that include . . . any material issues, defenses, and theories that are supported by the evidence." People v Craft, 325 Mich.App. 598, 606-607; 927 N.W.2d 708 (2018) (quotation marks and citation omitted). "Further, when a jury instruction is requested on any theories or defenses and is supported by evidence, it must be given to the jury by the trial judge." People v Mills, 450 Mich. 61, 81; 537 N.W.2d 909 (1995), mod 450 Mich. 1212 (1995). "Jurors are presumed to follow the court's instructions, and instructions are presumed to cure most errors." People v Mullins, 322 Mich.App. 151, 173; 911 N.W.2d 201 (2017).
Defendant asserts that there were two problems with the trial court's instruction related to his charge of tampering with evidence. First, defendant contends that trial counsel should have objected to, rather than approved of, the jury instruction's inclusion of potential penalty related to the underlying crime for which evidence was destroyed. Second, defendant posits that trial counsel should have objected to the jury instruction's alleged ambiguity related to those underlying crimes, which referenced only felony murder and arson, generally.
Defendant's first assertion is related to the proposition "that neither the court nor counsel should address themselves to the question of the disposition of a defendant after the verdict." People v Torres (On Remand), 222 Mich.App. 411, 423; 564 N.W.2d 149 (1997). "Furthermore, it is proper for the court to instruct the jury that it is not to speculate with regard to this issue and that it should confine its deliberations to the issue of guilt or innocence." Id. In other words, a" '[d]efendant [is] entitled to a fair trial and to a verdict by the jury upon the evidence without consideration of the punishment to be administered.'" People v Goad, 421 Mich. 20, 27; 364 N.W.2d 584 (1984), quoting People v Warner, 289 Mich. 516, 521; 286 N.W. 811 (1939).
Neither the parties on appeal nor the trial court in its written order denying a Ginther hearing contend that the jury instruction, as read, was appropriate under the caselaw just discussed. Assuming without deciding that all involved in the present dispute are correct in that regard, which suggests that trial counsel should have objected to the jury instruction instead of approving it, defendant's claim of ineffective assistance of counsel still must fail because he cannot satisfy the second prong of Strickland, 466 U.S. at 694. This is because, in addition to instructing the jury about the underlying crime of first-degree felony murder containing a potential punishment of more than 10 years' imprisonment, the trial court instructed the jury that "[p]ossible penalty should not influence your decision. It is the duty of the Court, my job, to fix the penalty within the limits provided by the law." Michigan caselaw provides that "[j]urors are presumed to follow the court's instructions, and instructions are presumed to cure most errors." Mullins, 322 Mich.App. at 173. In Torres, 222 Mich.App. at 423, this Court concluded that any potential error caused by a mention of potential punishment during jury instructions was cured by an instruction that the jury "should not allow the possible penalty to influence its decision." There is no material difference between this case and Torres that would warrant a different result.
Because the trial court's instruction not to consider potential penalties cured any issue related to the possible penalty included in the tampering-with-evidence instruction, an objection by trial counsel regarding that instruction would not have changed the outcome of trial. Mullins, 322 Mich.App. at 173; Torres, 222 Mich.App. at 423. Consequently, defendant's argument fails the second prong of Strickland, 466 U.S. at 694. Further, because defendant has not provided any evidence or argument supporting that additional evidence of potential prejudice could have been introduced at a Ginther hearing, the trial court did not abuse its discretion in denying his postconviction motion for one. Unger, 278 Mich.App. at 216-217; Williams, 275 Mich.App. at 200.
With respect to defendant's second challenge, he contends that the tampering-with-evidence instruction was improper because he was acquitted of felony murder, so the jury could not have convicted him of tampering with evidence to be offered in a proceeding regarding felony murder. The trial court correctly determined that defendant's claim was premised on a misunderstanding of the law related to a charge of tampering with evidence. In order to convict defendant of tampering with evidence in this case, the prosecution was required to prove that defendant "[k]nowingly and intentionally . . . tamper[ed] with evidence to be offered," MCL 750.483a(5)(a), in an official "proceedings that ha[d] not yet begun," People v Walker, 330 Mich.App. 378, 387; 948 N.W.2d 122 (2019). "If the violation is committed in a criminal case for which the maximum term of imprisonment for the violation is more than 10 years . . . [then] the person is guilty of a felony punishable by imprisonment for not more than 10 years," a fine, or both. MCL 750.483a(6)(b). Thus, the prosecution only needed to prove that defendant tampered with evidence to be offered in a future criminal proceeding related to a crime for which the maximum punishment is more than 10 years' imprisonment. MCL 750.483a(5)(a); Walker, 330 Mich.App. at 387; MCL 750.483a(6)(b). Contrary to defendant's contention, it is irrelevant whether the official proceedings in question resulted in a conviction with respect to the crime for which evidence was tampered. Accord People v Holley, 480 Mich. 222, 231; 747 N.W.2d 856 (2008) (explaining that, under a different subsection of MCL 750.483a, "the prosecution is not required to prove beyond a reasonable doubt that the crime being reported was committed or attempted").
Accordingly, the trial court properly instructed the jury to consider whether defendant tampered with evidence that would have been used in a future official proceeding related to a crime for which the maximum punishment was more than 10 years' imprisonment. Presumably, the jury determined that defendant's disposing of the victim's body in the Flint River and burning of her rented Fiat amounted to tampering with evidence to be used in a criminal prosecution for first-degree felony murder, a crime punishable by life imprisonment without the possibility of parole, MCL 750.316(1), which is more than 10 years' imprisonment, MCL 750.483a(5)(a), (6)(b); Walker, 330 Mich.App. at 387. That defendant was ultimately acquitted of first-degree felony murder and convicted of the lesser included offense of second-degree murder is irrelevant. Thus, an objection by trial counsel regarding the underlying crime for the tampering with evidence charge would have been overruled, rendering it futile and not an adequate basis to prove ineffective assistance of counsel. Miller, 326 Mich.App. at 731-732. Moreover, because defendant failed to advance an argument that a factual record prepared during a Ginther hearing could change that outcome, the trial court did not abuse its discretion in denying one. Unger, 278 Mich.App. at 216-217; Williams, 275 Mich.App. at 200.
Defendant has also asserted a problem with the instruction's reference to "arson" generally as the underlying crime. That argument, however, requires an initial determination that there was an issue caused by defendant's acquittal of first-degree felony murder, which there was not. Consequently, because the trial court correctly explained to the jury that defendant could be guilty of tampering with the evidence in a proceeding related to a felony murder prosecution, this issue is now moot, and we decline to consider it. People v Smith, 502 Mich. 624, 631; 918 N.W.2d 718 (2018).
Next, defendant argues that a Ginther hearing should have been granted related to his claim that trial counsel was ineffective for failing to request jury instructions regarding Casey's status as a disputed accomplice. "It is the long settled rule in this State that the credibility of an accomplice, like that of any other witness, is a question exclusively for the jury." People v Young, 472 Mich. 130, 137; 693 N.W.2d 801 (2005) (quotation marks and citation omitted). Trial courts are "historically accorded" discretion "in deciding whether to give a cautionary accomplice instruction." Id. at 143. In other words, "where a defendant requests a cautionary instruction regarding an accomplice's testimony," the decision regarding whether to give the instruction is "within the sound discretion of the trial court." People v Ho, 231 Mich.App. 178, 188-189; 585 N.W.2d 357 (1998). "[T]he instruction is only required if supported by the evidence." People v McGhee, 268 Mich.App. 600, 608; 709 N.W.2d 595 (2005).
In his postconviction motion in the trial court, defendant contended that his trial counsel should have requested M Crim JI 5.5 and 5.6 as related to Casey. Under M Crim JI 5.5, the jury would have been instructed to determine whether Casey "took part in the crime [] defendant is charged with committing," explaining that an accomplice is someone "who knowingly and willingly helps or cooperates with someone else in committing a crime . . . ." If the jury did determine Casey was an accomplice, then M Crim JI 5.6 would apply, and the jury would have been instructed to consider her testimony with caution, considering her reasons to lie.
The trial court, in denying defendant's postconviction motion, reasoned that it would not have provided the disputed accomplice instructions if requested because "[Casey] was never charged with a crime or considered a suspect in any of the crimes with which Defendant was charged." The trial court also determined that it was sound trial strategy not to request the instruction because it would have implied to the jury that Casey was an accomplice of defendant, potentially resulting in an inference of his guilt. Lastly, the trial court determined that, even if the disputed accomplice instructions had been requested and provided, it would not have changed the outcome of trial in light of trial counsel's significant and pointed cross-examination of Casey, which adequately undermined her credibility even without the instruction.
We agree with the trial court's decision that trial counsel did not request the jury instruction as a matter of sound trial strategy, belying any claim of ineffective assistance of counsel in that regard. As noted, we "will not second-guess strategic decisions with the benefit of hindsight." People v Dunigan, 299 Mich.App. 579, 590; 831 N.W.2d 243 (2013). Defendant's testimony was that he was entirely innocent of the crimes with which he was charged. His testimony shifted blame entirely to Casey, and possibly Henshaw, but did not include any indication that he was involved in the matter. To supplement defendant's testimony, trial counsel effectively cross-examined Casey regarding her drug abuse, poor memory, and lies provided under oath. Trial counsel also attempted to alleviate suspicion of defendant by providing rigorous cross-examination of all individuals-especially McBean-who stated that they could identify defendant. Trial counsel engaged in other activities as well, all with the goal of entirely shifting blame away from defendant and onto Casey, and possibly Henshaw.
The "disputed accomplice" instruction could have potentially undone some of that work. Assuming that the instruction would have been given if requested, the instruction would indicate that Casey could be an accomplice to the crimes with which defendant was charged. M Crim JI 5.5. Characterizing Casey as an accomplice would suggest that she was not solely responsible for the crimes, but helped someone. It is reasonable to assume that the jury would think that the person Casey helped was defendant. Although the instructions would have included directions to consider Casey's testimony with caution because of her status as an accomplice, it is reasonable for an attorney to assume the reward was not worth the risk of the implied connection between defendant and Casey. Importantly, if the jury were to consider defendant as a principal actor with Casey as his accomplice, it not only would have undermined the theory of defense (innocence), but also defendant's own testimony, which was that he was completely uninvolved in the case. More troublingly, the principal-accomplice connection would also have bolstered at least a portion of Casey's testimony, which involved Casey directing defendant to a place where he could dispose of the victim's body in the Flint River.
In sum, it was not unreasonable trial strategy for trial counsel to rely on his cross-examination along with general jury instructions regarding considerations of a witness's potential bias or reason to lie than to request a jury instruction that could have provided the jury with an entirely different avenue of convicting defendant-someone who worked together with Casey to accomplish the crimes. In light of that danger, the trial court did not err in concluding that trial counsel's decision not to request the noted instructions was a matter of sound trial strategy, which this Court will not disturb on appeal. Dunigan, 299 Mich.App. at 590. Therefore, this argument by defendant failed to show that trial counsel's decision fell" 'outside the wide range of professionally competent assistance.'" Jackson, 313 Mich.App. at 431, quoting Strickland, 466 U.S. at 690. Further, defendant did not provide any argument or factual proof that a Ginther hearing would have led to a different result, and therefore, the trial court did not abuse its discretion in denying it. Unger, 278 Mich.App. at 216-217; Williams, 275 Mich.App. at 200.
Defendant's final allegation related to the need for a Ginther hearing was that trial counsel should have requested the addict-informer jury instruction. The instruction at issue, M Crim JI 5.7, "is a cautionary instruction that advises a jury that testimony given by an addict-informant should be examined closely and considered with special scrutiny." People v Jackson, 292 Mich.App. 583, 601; 808 N.W.2d 541 (2011). However, according to binding caselaw, "the instruction is to be used where the uncorroborated testimony of an addict informant is the only evidence linking the accused with the alleged offense." People v McKenzie, 206 Mich.App. 425, 432; 522 N.W.2d 661 (1994). While Casey acknowledged on the stand that she was addicted to crack-cocaine and provided information to police, Casey's testimony at trial was not uncorroborated. Instead, the record presents a plethora of physical evidence and testimony to corroborate Casey's claim that defendant killed the victim, disposed of her body, and burned her car. Because Casey's testimony was not uncorroborated, any request for the addict-informer instruction under M Crim JI 5.7 would have been denied. McKenzie, 206 Mich.App. at 432.
Because any request for the addict-informer instruction would have been properly denied, such a request would have been futile, and "[c]ounsel is not ineffective for failing to make futile objections. Miller, 326 Mich.App. at 731-732. Further, given the record just reviewed, defendant has not provided any proof or argument suggesting that a Ginther hearing would have created a factual record leading to different result. Williams, 275 Mich.App. at 200. Thus, the trial court's order denying defendant's motion for a Ginther hearing in that regard was not an abuse of discretion. Unger, 278 Mich.App. at 216-217.
III. SENTENCING ISSUES
Next, defendant asserts that he is entitled to resentencing because the trial court considered acquitted conduct and miscalculated the minimum sentencing guidelines range. We disagree.
A. PRESERVATION AND STANDARDS OF REVIEW
To preserve a sentencing issue for appeal, the issue must be raised "at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals." People v Clark, 315 Mich.App. 219, 223; 888 N.W.2d 309 (2016) (quotation marks and citation omitted). In a motion for resentencing, defendant argued that OV 2 was improperly scored, thus preserving the issue. Defendant did not, however, raise any argument related to the trial court's purported reliance on acquitted conduct, so that argument is not preserved.
For preserved issues "[u]nder the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013). "Clear error is present when the reviewing court is left with a definite and firm conviction that an error occurred." People v McChester, 310 Mich.App. 354, 358; 873 N.W.2d 646 (2015) (quotation marks and citation omitted). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Hardy, 494 Mich. at 438. More generally, "[t]he issue of whether defendant is entitled to resentencing is a legal question which we review de novo." People v Latham (On Reconsideration), Mich. App, ; N.W.2d (2020) (Docket No. 338891), slip op at 2.
As to defendant arguments related to acquitted conduct, in general, "[t]he question whether the Sixth and Fourteenth Amendments permit the use of acquitted conduct to increase a defendant's sentence presents issues of constitutional interpretation, which we review de novo." People v Beck, 504 Mich. 605, 618; 939 N.W.2d 213 (2019). However, "[u]npreserved issues are reviewed for plain error." People v Beesley, Mich. App, ; N.W.2d (2021) (Docket No. 348921); slip op at 6.
B. RIGHT TO BE RESENTENCED
Defendant contends that the trial court was required to resentence him after determining that his OV score had been miscalculated, which lowered his recommended minimum guidelines range. After correcting defendant's sentencing guidelines range, the trial court declined to resentence defendant, reasoning that resentencing was unnecessary because defendant's original minimum sentence still fell within the newly-calculated guidelines range, and the court would have imposed the same sentence under the now-corrected minimum guidelines range. This factual scenario is factually indistinct from the scenario this Court faced in Latham, Mich.App. at; slip op at 2-3, where this Court held that, because the trial court had already considered the issue and determined that it would have issued the same sentence even with the correct guidelines range, resentencing was not required. In light of that binding and determinative precedent, defendant's argument that the trial court erred by denying his motion for resentencing lacks legal merit.
C. ACQUITTED CONDUCT
Defendant also argues that the trial court wrongfully sentenced him on the basis of acquitted conduct. Stated differently, defendant contends that the trial court found that defendant committed first-degree felony murder and sentenced him accordingly, despite the jury's acquittal on that charge. In Beck, 504 Mich. at 629, our Supreme Court held "that due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted." In other words, a trial court "violate[s] the defendant's due-process protections" if it "punishe[s] the defendant more severely on the basis of the judge's finding by a preponderance of the evidence that the defendant committed the murder of which the jury had acquitted him . . . ." Id. The Court in Beck clarified that it was only discussing acquitted conduct, and not uncharged conduct, reasoning that "[w]hen a jury has made no findings (as with uncharged conduct, for example), no constitutional impediment prevents a sentencing court from punishing the defendant as if he engaged in that conduct using a preponderance-of-the-evidence standard." Id. at 626. "But when a jury has specifically determined that the prosecution has not proven beyond a reasonable doubt that a defendant engaged in certain conduct, the defendant continues to be presumed innocent." Id.
In the present case, there is no dispute that defendant was acquitted of first-degree felony murder and convicted of the lesser included offense of second-degree murder. Yet there can also be no real dispute that the trial court did not find, by a preponderance of the evidence, that defendant was guilty of the crime for which he was acquitted. The trial court acknowledged that the jury convicted defendant of second-degree murder and expressly agreed with that determination, stating, "I absolutely agree with the jury-jury's verdict." Nothing in the record suggests that the trial court made any finding that defendant committed the conduct for which he was acquitted. Accordingly, defendant's argument that the trial court sentenced him on the basis of acquitted conduct is without merit.
In arguing for a different result, defendant contends that the trial court effectively sentenced him to life imprisonment without the possibility of parole-the mandatory sentence for first-degree murder-because he is over 50 years old, and the court's 65-year minimum sentence would all but guarantee that he dies in prison. We need not grapple with the reasoning of this argument at length because, at its base, a violation of due-process rights under Beck, requires a trial court to rely on acquitted conduct when determining a sentence. In the present case, there is nothing in the record to suggest the trial court did so. Consequently, defendant has failed to carry his burden to provide a factual record supporting his claim for reversal. People v Elston, 462 Mich. 751, 762; 614 N.W.2d 595 (2000) (explaining that a defendant, "[a]s the appellant . . ., bore the burden of furnishing the reviewing court with a record to verify the factual basis of any argument upon which reversal was predicated").
In the process of making his argument under Beck, defendant suggests we should overrule caselaw holding sentences within the minimum guidelines range are presumed to be proportionate and can only be challenged under specific circumstances. The first problem with that apparent argument is it was not listed in the statement of questions presented in defendant's brief on appeal, which only mentioned acquitted conduct and a right to be resentenced because of OV 2 being improperly scored. Failing to include the issue resulted in its waiver, and thus, we need not and do not address it. See People v Fonville, 291 Mich.App. 363, 383; 804 N.W.2d 878 (2011). The second problem with defendant's argument is that it would require us to overrule published decisions of this Court, see People v McFarlane, 325 Mich.App. 507, 538; 926 N.W.2d 339 (2018); Schrauben, 314 Mich.App. at 196; People v Bowling, 299 Mich.App. 552, 558; 830 N.W.2d 800 (2013), which would violate the doctrine of stare decisis, MCR 7.215(C)(2) ("A published opinion of the Court of Appeals has precedential effect under the rule of stare decisis."). While we could, if we so desired, declare a conflict panel to decide whether those published decisions were rightly decided, such a course of action seems imprudent in light of the fact that our Supreme Court recently scheduled oral argument on this very issue. See People v Stewart, Mich. (2021) (Docket No. 162497); People v Posey, Mich. (2021) (Docket No. 162373).
As one final note, defendant states, in a single sentence, that he should be resentenced before a different judge. In light of the conclusion that resentencing is not warranted, this issue has been rendered moot, and we decline to consider it. See People v Smith, 502 Mich. 624, 631; 918 N.W.2d 718 (2018) (explaining that an issue is moot, and that a court should not address it, "if no controversy exists and any judgment on the matter would lack practical legal effect").
IV. CONCLUSION
Affirmed.