                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 16, 2016
               Plaintiff-Appellee,

v                                                                   No. 320796
                                                                    Saginaw Circuit Court
RICO SALDANA,                                                       LC No. 12-037966-FC

               Defendant-Appellant.


Before: RIORDAN, P.J., and DONOFRIO and BECKERING, JJ.

PER CURIAM.

        Defendant, Rico Saldana, appeals as of right from his convictions following a jury trial of
first-degree premeditated murder, MCL 750.316(1)(a); conspiracy to commit first-degree
premeditated murder, MCL 750.316(1)(a) and MCL 750.157a; nine counts of possession of a
firearm during commission of a felony (felony-firearm), MCL 750.227b; five counts of assault
with intent to commit murder, MCL 750.83; and one count each of carrying a concealed weapon
(CCW), MCL 750.227; carrying a dangerous weapon with unlawful intent, MCL 750.226;
discharging a firearm from a vehicle, MCL 750.234a; and felon in possession of a firearm, MCL
750.224f. We affirm defendant’s convictions and sentences, except for the sentence imposed for
conspiracy to commit first-degree premeditated murder, which must be corrected to indicate the
possibility of parole.

                                     I. PERTINENT FACTS

        This case arises out of a shooting that resulted in the death of six-year-old Layla Jones.
She was shot as she prepared to get into the back seat of her grandmother’s car after spending the
evening at her aunt’s home on Essling Street in Saginaw. She later died at a local hospital
emergency room. The prosecution’s chief witness was one of the men involved in the shooting,
Julian Ruiz. Julian testified at trial that he, defendant, Michael Lawrence, and Levonne Jomarrio
Greer1 had been consuming alcohol and smoking marijuana at defendant’s house on Harold



1
 Defendant and Lawrence were tried together before one jury, which convicted both men.
Lawrence has appealed separately; that appeal is currently pending before this Court in Docket
No. 321433. Greer, the third participant in the shooting, was tried and convicted separately.

                                                -1-
Street in Saginaw. At some point, they learned that a mutual acquaintance, Bobby Bailey, was
killed earlier that day. Julian said they were upset about Bailey’s death, but that no one
expressed any particular opinion about it. Later that day, defendant asked Julian to see if he
could borrow a Buick Skylark that belonged to Julian’s sister, Marlena Ruiz. Julian left, picked
up the Skylark, and returned to defendant’s house. A short while later, defendant, Lawrence, and
Greer returned in a Dodge Avenger; defendant was driving the Avenger. Defendant told Julian
to follow them, and they drove to a house that belonged to one of defendant’s relatives.
Everyone then got into the Skylark, with defendant driving. Although Julian had previously
been driving the Skylark, he got into the backseat because defendant stated that he wanted to
drive the car. Lawrence sat in the passenger seat, and Greer and Julian sat in the back. Julian
saw that both Lawrence and Greer were holding guns.

        After turning onto Essling Street, someone in the car said, “There goes somebody.”
Defendant slowed the car to a roll while Lawrence reached across defendant and fired his gun
out of the front driver’s-side window toward a group of people standing in front of Layla’s aunt’s
home, while Greer fired out of the back driver’s-side window. When the shooting stopped,
defendant hastily drove the Skylark away from the scene of the shooting. Layla was fatally
injured in the shooting. Her father, Shawrone Jones, sustained gunshot wounds to the stomach
and leg. Julian estimated that Lawrence and Greer fired approximately 10 to 12 shots. At some
point, either before or after the occupants of the vehicle stopped shooting, the vehicle sustained
damage from three gunshots.

        After leaving the scene of the shooting, defendant drove the Skylark back to the house
where they had left the Avenger. Defendant and Greer got back into the Avenger, and Julian and
Lawrence drove the Skylark back to defendant’s house. According to Julian, Lawrence gave his
handgun to defendant after the shooting. Julian collected three shell casings from inside the
Skylark and tossed them in the sewer in front of defendant’s house. Defendant instructed Julian
to clean the Skylark. Julian later cleaned the car with baby wipes and, on the day after the
shooting, used a spray can of disinfectant he obtained from defendant to clean the car. Julian hid
the disinfectant and the towel he used to clean the car in the doghouse in his backyard. Two days
after the shooting, police arrested defendant and Greer at a motel. At the time, defendant
informed the officers that he and Greer were visiting an acquaintance and were at the motel to go
swimming. The officers did not find swimming trunks or luggage in the motel room; in addition,
the motel did not have a pool. The officers searched defendant’s cellular telephone and
discovered a police scanner application that monitored local radio frequencies was running on
the phone.

                            II. SUFFICIENCY OF THE EVIDENCE

        On appeal, defendant claims that the evidence was insufficient to prove that he acted with
the intent to kill, or knew that Lawrence and Greer acted with the intent to kill, that the killing
was premeditated and deliberate, or that he conspired with Lawrence and Greer to commit first-
degree premeditated murder. Defendant argues that, at worst, the evidence shows that he acted

This Court affirmed Greer’s convictions. People v Levonne Jomarrio Greer, unpublished
opinion per curiam of the Court of Appeals, issued January 22, 2015 (Docket No. 318286).


                                                -2-
as an accessory after-the-fact. We review de novo his challenge to the sufficiency of the
evidence. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). “We examine the
evidence in a light most favorable to the prosecution, resolving all evidentiary conflicts in its
favor, and determine whether a rational trier of fact could have found that the essential elements
of the crime were proved beyond reasonable doubt.” Id. at 196.

        Although defendant raises the issue of the sufficiency of the evidence to support the
jury’s guilty verdict for assault to commit first-degree murder and “various firearms offenses,”
the gravamen of defendant’s claim is that the record does not support a finding of a specific
intent to kill, premeditation and deliberation, or conspiracy. Defendant does not dispute his
convictions of CCW, carrying a dangerous weapon with unlawful intent, discharging a firearm
from a vehicle, felon in possession of a firearm, or felony-firearm. Therefore, and commensurate
with defendant’s arguments, we consider whether there was sufficient evidence to support
defendant’s convictions for first-degree premeditated murder, conspiracy to commit murder, and
assault with intent to commit murder.

        With regard to first-degree murder and assault with intent to commit murder, defendant
was charged under an aiding and abetting theory. MCL 767.39 provides that “[e]very person
concerned in the commission of an offense, whether he directly commits the act constituting the
offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted,
indicted, tried and on conviction shall be punished as if he had directly committed such offense.”
“Aiding and abetting” describes “any type of assistance given to the perpetrator of a crime by
words or deeds that are intended to encourage, support, or incite the commission of that crime.”
People v Moore, 470 Mich 56, 63; 679 NW2d 41 (2004). The elements of aiding and abetting
are as follows:

       (1) the crime charged was committed by the defendant or some other person; (2)
       the defendant performed acts or gave encouragement that assisted the commission
       of the crime; and (3) the defendant intended the commission of the crime or had
       knowledge that the principal intended its commission at the time that [the
       defendant] gave aid and encouragement. [People v Bennett, 290 Mich App 465,
       472; 802 NW2d 627 (2010), quoting People v Robinson, 475 Mich 1, 6; 715
       NW2d 44 (2006) (alteration in original).]

“ An aider and abetter’s knowledge of the principal’s intent can be inferred from the facts and
circumstances surrounding an event.” Id. at 474. Similarly, an aider and abetter’s intent may be
inferred from circumstantial evidence. People v Carines, 460 Mich 750, 758; 597 NW2d 130
(1999).

                                     A. FIRST-DEGREE MURDER

        “The elements of first-degree murder are (1) the intentional killing of a human (2) with
premeditation and deliberation.” Bennett, 290 Mich App at 472. Because the intent to kill can
be difficult to prove, “minimal circumstantial evidence is sufficient a defendant’s intent to kill.”
People v Unger, 278 Mich App 210, 223; 749 NW2d 272 (2008). A defendant’s intent to kill
may be inferred from “any facts in evidence,” id., including the use of a deadly weapon, People v
DeLisle, 202 Mich App 658, 672; 509 NW2d 885 (1993).

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        To sustain a conviction of first-degree murder under an aiding and abetting theory, the
prosecution had to present evidence, beyond a reasonable doubt, that: (1) defendant or someone
else committed first-degree murder; (2) defendant performed acts or gave encouragement that
assisted the commission of first-degree murder; and (3) defendant intended the commission of
first-degree murder or knew that the principal intended to commit first-degree murder at the time
he rendered aid. See id. Here, there was evidence that Greer and/or Lawrence acted as
principals in the shooting. Defendant argues that there was insufficient evidence for a rational
jury to find that he encouraged a principal to commit the offense, or that he intended the
commission of the offense or knew that Lawrence or Greer intended to commit the offense of
first-degree murder.

        Contrary to defendant’s assertions, there was ample evidence that he performed acts or
gave encouragement that assisted in the commission of the offense of first-degree murder.
According to Julian’s testimony, defendant insisted that he drive the group in the Skylark
immediately before the shooting. In addition, after defendant or one of his cohorts said “There
goes somebody” defendant slowed the car in front of the house where they opened fire. Such an
act could be viewed as an act of assistance, as slowing the car would make it easier for the
occupants of the car to aim and shoot. When the shooting was over, defendant sped away from
the scene. When viewed in a light most favorable to the prosecution, a rational juror could find
that defendant rendered assistance to the principals.

        Further, defendant’s intent to kill, or knowledge of Greer and Lawrence’s intent to kill,
may reasonably be inferred from the circumstances of the shooting. See Unger, 278 Mich App
at 223. The evidence shows that Lawrence and Greer visibly held guns in their laps as defendant
drove to Essling Street. Once they turned onto Essling Street and saw people standing in front of
the home, defendant slowed the Skylark while Lawrence reached across him and fired out of the
window at the crowd and Greer pointed his gun out the back driver’s-side window and started
shooting. Lawrence and Greer’s intent to kill may be inferred from their use of guns to shoot at
the people on Essling Street. DeLisle, 202 Mich App at 672. Lawrence and Greer openly
possessed deadly weapons in the car, and defendant supported them in their purpose by slowing
the borrowed Skylark at the bottom of the driveway in front of the home where the shooting
occurred, thereby giving Greer and Lawrence the time to fire 10 to 12 rounds toward the people
in front of the house, see Moore, 470 Mich at 63. The fact that the car was travelling at a slower
speed can be understood as providing the shooters an increased opportunity to strike what they
were shooting at. Although no evidence was presented to establish that defendant, Lawrence, or
Greer intended to kill anyone in particular, under the doctrine of transferred intent, it is only
significant that the intent to kill exist, not that the intent was directed at any particular person.
People v Abraham, 234 Mich App 640, 658; 599 NW2d 736 (1999).

        There was also sufficient evidence of premeditation and deliberation. “Premeditation and
deliberation, for purposes of a first-degree murder conviction, require sufficient time to allow the
defendant to take a second look.” People v Orr, 275 Mich App 587, 591; 739 NW2d 385 (2007)
(citation and quotation marks omitted). The time span necessary for a “second look” need not be
long. Unger, 278 Mich App at 229. “Premeditation may be established through evidence of (1)
the prior relationship of the parties, (2) the defendant's actions before the killing, (3) the
circumstances of the killing itself, and (4) the defendant's conduct after the homicide.” Id. In the
instant case, the premeditated and deliberate nature of the killing is evident from the acquisition

                                                -4-
and positioning of the guns in preparation for the shooting, as well as in the way defendant
arranged transportation to and from the shooting. See id. Notably, defendant asked Julian to
borrow Marlena’s Skylark, even though the group had other vehicles at their disposal. Further,
rather than drive to Essling Street directly from his house, defendant used a different house—one
that belonged to one of his relatives—as the point of departure and return. Lawrence and Greer
were armed and holding their guns in their laps as they travelled. Upon seeing “somebody,”
defendant slowly rolled the car past the home where the shooting occurred, giving the shooters
more time and a better chance to hit their targets. After the shooting, the group returned to the
Avenger, and Lawrence gave his weapon to defendant. This evidence of preparation and
organized conduct before and after the intentional killing is sufficient to allow a reasonable jury
to infer that the killing, which defendant helped facilitate, was premeditated and deliberate. See
id.

                    B. ASSAULT WITH INTENT TO COMMIT MURDER

        Defendant also argues that there was insufficient evidence to support his convictions for
assault with intent to commit murder under an aiding and abetting theory. “The elements of
assault with intent to commit murder are (1) an assault, (2) with an actual intent to kill, (3)
which, if successful, would make the killing murder.” Ericksen, 288 Mich App at 196 (citation
and quotation marks omitted).

        For many of the reasons noted above, there was sufficient evidence for a rational jury to
conclude that Lawrence or Greer committed the offense of assault with intent to commit murder
when they opened fire upon the group gathered at the house on Essling Street, and that defendant
gave encouragement and intent the commission of the crime. As noted, defendant drove the
Skylark to the home; during the drive Lawrence and Greer sat with their weapons displayed
visibly. Upon someone in the vehicle saying, “There goes somebody,” defendant slowed the
vehicle, and his cohorts opened fire. Defendant sped away when his cohorts stopped shooting.
This evidence was sufficient for a rational jury to find that defendant aided and abetted the
commission of assault with intent to commit murder. See Bennett, 290 Mich App at 472;
Ericksen, 288 Mich App at 196.

                 C. CONSPIRACY TO COMMIT FIRST-DEGREE MURDER

       Defendant also argues that the prosecution did not prove the existence of a conspiracy.
He argues that while there was evidence of a shooting, there was no evidence of an explicit
agreement to shoot. Defendant submits that there was no testimony that he, Lawrence, or Greer
discussed avenging Bailey’s death, or that he instructed Lawrence and Greer to shoot, or that he
handled a weapon, other than the one Lawrence gave him after the shooting.

        MCL 750.157a provides that “[a]ny person who conspires together with 1 or more
persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is
guilty of the crime of conspiracy . . . .” “A criminal conspiracy is a partnership in criminal
purposes, under which two or more individuals voluntarily agree to effectuate the commission of
a criminal offense.” People v Jackson, 292 Mich App 583, 588; 808 NW2d 541 (2011). The
individuals must specifically intend to combine to commit the offense. Id. A conspiracy can be
established through circumstantial evidence, including the acts and conduct of the parties. Id.

                                                -5-
        In the instant case, the acts of the parties established an implied agreement to commit
first-degree murder. Although Julian testified that no one talked about avenging Bailey’s death
or otherwise killing anyone, all four participants in the shooting knew Bailey and had learned
earlier that day that someone had killed him. And, as noted above, defendant orchestrated a
transportation scheme that would distance himself and his cohorts from the killing. While en
route to the scene of the shooting, Lawrence and Greer positioned weapons in their laps. They
opened fire shortly after spotting a group of people. Defendant slowed the Skylark as they fired
several shots. Once Lawrence and Greer had fired their shots, defendant accelerated down
Essling Street and drove back to the house where they left the Avenger, where defendant and
Greer changed cars again and the group split up. Although the record contains no evidence of an
explicit agreement, the coordinated actions of defendant, Lawrence, and Greer warrant a fair
inference that defendant and his cohorts conspired together to accomplish a drive-by shooting
that they intended to result in death. As noted above, the steps these individuals took before and
after the shooting supports that their coordinated actions were premeditated. See Jackson, 292
Mich App at 588, 590. Defendant’s argument is meritless.

         D. CONCLUSION AS TO DEFENDANT’S SUFFICIENCY ARGUMENTS

        In sum, viewed in a light most favorable to the prosecution, we find that the prosecution
presented sufficient evidence to allow a rational trier of fact to determine that the essential
elements of first-degree murder, conspiracy to commit first-degree murder, and assault with
intent to commit murder are met. See Ericksen, 288 Mich App at 196. Although defendant does
not challenge the sufficiency of the evidence with regard to the remainder of his convictions—
his convictions involving firearm offenses—we find that, based on the above discussion, there
was sufficient evidence to support these convictions as well.

                       III. PRIOR TESTIMONY OF MARLENA RUIZ

       Defendant next argues that the trial court erred in denying his motion to admit former
testimony offered by Marlena Ruiz during Greer’s trial. Before defendant’s trial, the parties
attempted to, but could not locate Marlena. “This Court reviews a trial court’s determination of
evidentiary issues for an abuse of discretion.” People v Farquharson, 274 Mich App 268, 271;
731 NW2d 797 (2007). To the extent the trial court’s evidentiary ruling involves a preliminary
question of law, our review is de novo. Id. A trial court has not abused its discretion if its
decision results in an outcome within the range of reasoned and principled outcomes. People v
Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013).

       All relevant evidence is admissible unless it is otherwise restricted by law. MRE 402.
Out-of-court statements offered for their truth are hearsay, MRE 801(c), and are inadmissible
unless the rules of evidence provide otherwise, MRE 802. Defendant acknowledges that
Marlena’s prior testimony in Greer’s trial are hearsay. However, he argues that the hearsay
exception in MRE 804(b)(1) applies to her statements. MRE 804(b)(1) allows a party to admit
into evidence the former testimony of a declarant who is unavailable as a witness. The rule
provides that “[t]estimony given as a witness at another hearing of the same or a different




                                               -6-
proceeding”2 is not excluded by the hearsay rule “if the party against whom the testimony is now
offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination.” MRE 804(b)(1). In a criminal trial, a declarant is unavailable as a
witness if he or she “is absent from the hearing and the proponent of a statement has been unable
to procure the declarant’s attendance . . . by process or other reasonable means, and . . . due
diligence is shown.” MRE 804(a)(5).

        Neither side disputes that Marlena was unavailable for trial, or that the prosecution
exercised due diligence in trying to locate her. Defendant filed a pretrial motion seeking the
prosecution’s assistance in locating Marlena, but despite the efforts of the prosecutor’s
investigator, she could not be located. Consequently, defendant requested that her testimony
from Greer’s trial be admitted as evidence in this trial. When seeking to admit her testimony at
his own trial, defendant represented that her testimony could contradict a portion of Julian’s
testimony. In particular, defendant noted that Julian testified that he called Marlena when he
asked if he could borrow her car, the Skylark, and that Marlena spoke to defendant. According
to defense counsel’s representations at defendant’s trial, Marlena denied having spoken with
defendant when she testified in Greer’s trial.3 We note that defendant has not provided this
Court with a copy of Marlena’s testimony in Greer’s trial, nor does a copy of her testimony
appear in the trial court record.

        The trial court denied defendant’s request to admit Marlena’s prior testimony, reasoning
as follows:

       because none of you had a chance to question her on the areas that you mentioned
       are relevant in this particular situation. I’m not sure, while it may be tangentially
       relevant, that it’s important to this case at all. It is an unusual request to have
       testimony read from another case where neither lawyer had a chance to cross-
       examine the witness, highly unusual, and I’m denying it at this point.

        Defendant argues on appeal that the trial court erred when it denied his motion to admit
Marlena’s former testimony without considering any of the factors set forth in Farquharson. In
Farquharson, 274 Mich App at 278, we adopted the following non-exhaustive list of factors for
trial courts to consider when determining whether the opponent of proposed former testimony
had an opportunity and similar motive to develop the disputed testimony:




2
 Neither side disputes that Greer’s trial qualifies as a “different proceeding” for purposes of
MRE 804.
3
  In his brief to this Court, defendant misrepresents Julian’s testimony, claiming that his
testimony was that defendant asked him to borrow Marlena’s car after defendant had talked to
Marlena. Julian’s testimony was that defendant asked him to borrow his sister’s car, he spoke
with her on a cell phone to arrange to borrow the car, and then defendant talked to her. Julian
did not talk to Marlena again because defendant did not give the telephone back to him.


                                               -7-
       (1) whether the party opposing the testimony had at a prior proceeding an interest
       of substantially similar intensity to prove (or disprove) the same side of a
       substantially similar issue; (2) the nature of the two proceedings-both what is at
       stake and the applicable burden of proof; and (3) whether the party opposing the
       testimony in fact undertook to cross-examine the witness (both the employed and
       available but forgone opportunities). [Quotation marks omitted.]

        The trial court did not explicitly invoke the Farquharson factors. However, the court’s
statement that “none of you had a chance to question her on the areas that you mentioned are
relevant in this particular situation” implies the determination that at least one of the
Farquharson factors were not met. Specifically, that the prosecutor’s interest in Marlena’s
testimony at the prior proceeding was not “of substantially similar intensity to prove (or
disprove) the same side of a substantially similar issue.” Id. We agree that this factor was not
met. In Greer’s trial, Marlena’s testimony about whom she spoke to was irrelevant because the
defendant was Greer, and she did not speak to Greer, and the prosecution had no reason to
establish whether Marlena spoke with defendant in the instant case. What the prosecution
needed to prove in that case was that Greer was one of the individuals in the Skylark who fired
shots. Whether Marlena spoke with defendant in the instant case was of no consequence in
Greer’s trial.4 In other words, the prosecutor had no motivation to establish whether Marlena
spoke with defendant in Greer’s trial. Although the prosecutor had the same interest in proving
the commission of the drive-by shooting in both Greer’s and defendant’s trials, the prosecutor
needed to prove the role of two distinct players in those distinct trials. A relatively benign
remark about to whom Marlena spoke was of no consequence with regard to Greer’s role.
Accordingly, the trial court did not abuse its discretion in excluding Marlena’s prior testimony,
as the prosecutor did not have, at Greer’s trial, an interest of substantially similar intensity to
prove or disprove whether Marlena spoke with defendant in the instant case. See Farquharson,
274 Mich App at 278. Moreover, because the testimony was inadmissible, there is no merit to
defendant’s accompanying assertion that the trial court’s exclusion of this evidence denied him
the right to present a defense. See Unger, 278 Mich App at 250 (recognizing that an accused’s
right to present a defense must yield to evidentiary rules, so long as those rules are not arbitrary
or disproportionate to their intended purpose).

                                       IV. SENTENCING

       Defendant next argues, and the prosecutor agrees, that the trial court erred by sentencing
him to life without the possibility of parole on the charge of conspiracy to commit first-degree
murder. The prosecution concedes error, and we agree. The trial court must sentence a person
convicted of first-degree murder under MCL 750.316 to life imprisonment. People v Fernandez,
427 Mich 321, 329; 398 NW2d 311 (1986). However, the parties correctly state that a person
sentenced to a term of imprisonment for conspiracy to commit first-degree murder must be



4
 For that matter, it is of little consequence in the instant case as well. At most, such testimony
would impeach Julian’s testimony on a minor point that was tangentially relevant in this case.
Therefore, even assuming error, defendant would not be entitled to relief.


                                                -8-
eligible for parole, and that the trial court erred in sentencing defendant to life without the
possibility of parole on the conspiracy conviction.5 People v Jahner, 433 Mich 490, 504; 446
NW2d 151 (1989). We remand to the trial court for administrative correction of the error.
Defendant is not entitled to a resentencing hearing because correcting the judgment of sentence
in the instant case is an administrative task. See People v Herndon, 246 Mich App 371, 393; 633
NW2d 376 (2001).

                                   V. STANDARD 4 BRIEF

       In his Standard 4 brief, defendant argues that he was deprived of effective assistance of
counsel when his attorney failed to cross-examine the lead police investigator about statements
contained in the affidavit used to obtain a warrant to search Julian’s house. Defendant did not
make a motion in the trial court for a new trial or an evidentiary hearing. However, he did file a
motion with this Court to remand the matter to the trial court for an evidentiary hearing to
address his claim of ineffective assistance. We denied the motion. People v Saldana,
unpublished order of the Court of Appeals, entered March 11, 2015 (Docket No. 320796). Our
review is limited to the record on appeal. People v Sabin (On Second Remand), 242 Mich App
656, 659; 620 NW2d 19 (2000).

         Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise. People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009). To prevail,
defendant must show that “(1) counsel’s performance fell below an objective standard of
reasonableness under professional norms and (2) there is a reasonable probability that, but for
counsel’s errors, the result would have been different and the result that did occur was
fundamentally unfair or unreliable.” Id. Defense counsel is given wide discretion in matters of
trial strategy, People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007), and “should be
‘strongly presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment[,]’ ” People v Vaughn, 491 Mich 642, 670; 821
NW2d 288 (2012), quoting Strickland v Washington, 466 US 668, 690; 104 S Ct 2052; 80 L Ed
2d 674 (1984). We will not substitute our judgment for that of counsel regarding matters of trial
strategy, nor will it assess counsel’s competence with the benefit of hindsight. People v Payne,
285 Mich App 181, 190; 774 NW2d 714 (2009). “[C]ounsel’s ineffective assistance must be
found to have been prejudicial in order to reverse an otherwise valid conviction.” People v
Pickens, 446 Mich 298, 314; 521 NW2d 797 (1994).

         Defendant contends he would have benefitted had the jury heard certain information
found in the affidavit used to obtain a search warrant of Julian’s house. Specifically, defendant
insists that he would have benefitted had the jury known the following: (1) Marlena owned the
vehicle used in the shooting; (2) an anonymous tipster reported that Julian fired shots out of the
car’s window; (3) Marlena’s car had been under surveillance before the police suspected
defendant’s involvement; (4) the Skylark had been involved in a traffic accident the day after the
shooting; (5) Marlena had “spontaneously asked” the police officers who were taking pictures at


5
  We note, however, that this ruling does not affect defendant’s nonparolable life sentence for
first-degree premeditated murder.


                                               -9-
the scene of the accident whether they were photographing her car because of the shooting the
night before; and (6) Julian was initially considered a suspect in this case. Defendant argues that
his trial counsel’s failure to impeach Julian’s testimony by cross-examining the police detective
with regard to the above rendered counsel’s performance objectively unreasonable. He also
argues that his counsel’s impeachment of Julian’s credibility in other ways does not excuse his
failure to impeach him through cross-examination of the detective.

        Defendant fails to overcome the heavy presumption that his counsel provided effective
assistance. Seals, 285 Mich App at 17. The jury did in fact hear testimony that the vehicle used
in the shooting was Marlena’s Skylark, that her car had been under surveillance, and that it had
been involved in a traffic accident the day after the shooting. Further, the jury was aware that
Julian was a suspect in the shooting, as it heard evidence that the police arrested Julian, searched
his home, and interviewed him multiple times with regard to his role in the shooting. Defense
counsel was not ineffective for failing to ask the detective about the anonymous tip that Julian
was firing out the window of the Skylark because the tip is inadmissible hearsay. See MRE
801(c); MRE 802. Nor was defense counsel ineffective for failing to ask about Marlena’s
spontaneous question to the police at the scene of her auto accident because the statement was
hearsay and defendant has failed to articulate an applicable exception to the hearsay rule. In
addition, it is not clear how the statement is relevant given that no one disputes that Marlena’s
car was used in the shooting. In sum, defendant has not overcome the presumption that his
counsel “rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 US at 690.

        We remand the case to the trial court to correct the sentence imposed for conspiracy to
commit first-degree premeditated murder. In all other respects, we affirm. We do not retain
jurisdiction.



                                                             /s/ Michael J. Riordan
                                                             /s/ Pat M. Donofrio
                                                             /s/ Jane M. Beckering




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