                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 15, 2016
               Plaintiff-Appellee,

v                                                                   No. 327252
                                                                    Wayne Circuit Court
GREGORY AUGUSTA POWELL,                                             LC No. 06-001978-FC

               Defendant-Appellant.


Before: CAVANAGH, P.J., and SAAD and FORT HOOD, JJ.

PER CURIAM.

        Defendant, Gregory Augusta Powell, appeals his June 2006 jury trial convictions of
assault with intent to commit murder, MCL 750.83, discharge of a firearm in a building, MCL
750.234b, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. The trial court sentenced defendant in June 2006 to concurrent terms of 12 to 20
years’ imprisonment for the assault conviction and two to four years’ imprisonment for the
discharge of a firearm conviction, to be served consecutive to two years’ imprisonment for the
felony-firearm conviction. This Court previously affirmed defendant’s convictions and
sentences in 2007. People v Powell, unpublished opinion per curiam of the Court of Appeals,
issued October 30, 2007 (Docket No. 272403). This case is again before this Court pursuant to a
federal court opinion and order conditionally granting defendant’s petition for a writ of habeas
corpus because of a violation of the right to appellate counsel, and affording defendant a new
appeal by right with respect to issues previously raised by defendant’s retained substitute counsel
in a motion for reconsideration in the prior appeal. Powell v Bergh, unpublished opinion of the
United States District Court for the Eastern District of Michigan, issued April 14, 2015 (Docket
No. 12-cv-11100). We again affirm.

        Defendant’s convictions arise from an early-morning shooting inside a Detroit
establishment, Marilyn’s on Monroe, on January 16, 2006. Many of the guests were acquainted
through a car and motorcycle club named Rough Riders. Defendant, an officer of the club’s car
division, intervened in an argument between one of the guests, Charles Scott, and another Rough
Riders officer, Aylaina Verdejo. According to Scott, Verdejo told defendant to “shoot him” and,




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seconds later, Scott was shot several times.1 Scott never actually saw a gun, but he saw fire
directly in front of defendant, coming out of what appeared to be a gun, and defendant was the
only person near the fire and no guests stood between Scott and defendant.

       Defendant first argues that he was denied the effective assistance of counsel. We
disagree. Although defendant argued that his attorney was ineffective in a post-conviction
motion for relief from judgment, no evidentiary hearing was held, so his ineffective assistance
claims are reviewed for mistakes apparent from the record. People v Payne, 285 Mich App 181,
188; 774 NW2d 714 (2009).

        Both the United States Constitution and the Michigan Constitution guarantee criminal
defendants the right to effective assistance of counsel. US Const, Am VI; Const 1963, art 1, §
20. “To demonstrate ineffective assistance of counsel, a defendant must show that his or her
attorney’s performance fell below an objective standard of reasonableness under prevailing
professional norms and that this performance caused him or her prejudice.” People v Nix, 301
Mich App 195, 207; 836 NW2d 224 (2013), citing People v Armstrong, 490 Mich 281, 289-290;
806 NW2d 676 (2011). “To demonstrate prejudice, a defendant must show the probability that,
but for counsel’s errors, the result of the proceedings would have been different.” Nix, 301 Mich
App at 207.

        Defendant raises two separate instances where he claims his trial counsel was ineffective.
First, defendant complains that his trial counsel failed to impeach Scott with medical records
showing that his alcohol or ethanol level was “88” on the night of the shooting. Decisions
regarding how to question witnesses are presumed to be matters of trial strategy. People v Petri,
279 Mich App 407, 413; 760 NW2d 882 (2008). “This Court will not substitute its judgment for
that of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with
the benefit of hindsight.” Id. at 411 (citation omitted).

       At trial, Scott testified that he had two drinks at the bar on the night of the shooting. On
cross-examination, Scott denied being drunk. As defendant asserts, defense counsel did not
question Scott regarding his blood alcohol content. However, we do not agree that defendant can
overcome the presumption of trial strategy. Here, Scott testified he had been drinking. While
defense counsel questioned Scott about whether he was drunk, counsel may have reasonably
decided not to reveal Scott’s blood alcohol content, which was only just over the legal limit.
Further, defense counsel thoroughly cross-examined Scott regarding other circumstances that
impacted Scott’s credibility, including that defendant had no reason to shoot Scott, that Scott’s
observations were hampered by the lack of lighting and music in the bar, and that Scott never
saw defendant with a gun. We will not second-guess defense counsel’s judgment in focusing on
these other circumstances and evidence to attack the reliability and accuracy of Scott’s
testimony. People v Benton, 294 Mich App 191, 203; 817 NW2d 599 (2011). Additionally, we
are not convinced that the result of defendant’s trial would have been different had defense


1
  Defendant was tried jointly with Verdejo, who was convicted of assault with intent to do great
bodily harm less than murder, MCL 750.84, discharge of a weapon firearm in a building, and
felony-firearm.


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counsel questioned Scott on this fact. The jury was already aware that Scott was drinking on the
night of the offense. We are not convinced that Scott’s blood alcohol content, although just over
the legal limit, would likely change the result of the trial.

        Defendant also asserts that defense counsel was ineffective in failing to object to the
prosecution’s failure to produce several res gestae witnesses that it had endorsed on its witness
list. Further, defendant argues that counsel failed to request a due diligence hearing regarding
the missing witnesses and failed to request a missing witness instruction.

        At issue are four witnesses listed on the prosecution’s witness list, who were not
produced at trial to testify—Cynthia Jones, James Gaymon, Yolanda Martin, and Kyle Colemen.
At trial, the prosecutor explained that these witnesses were avoiding service and could not be
located. Defendant asserts that these witnesses were res gestae witnesses, and that defense
counsel should have challenged whether the prosecutor used due diligence in locating the
witnesses.

       Michigan statutes and the rules of evidence address the right to confront res gestae
witnesses. In accordance with MCL 767.40a, the prosecution is required to notify a defendant of
all known res gestae witnesses and all witnesses who the prosecution intends to produce at trial.
People v Cook, 266 Mich App 290, 295; 702 NW2d 613 (2005). A res gestae witness is defined
as someone who has “witness[ed] some event in the continuum of the criminal transaction and
[whose] testimony would . . . have aided in developing a full disclosure of the facts at trial.”
People v Long, 246 Mich App 582, 585; 633 NW2d 843 (2001).

        “A prosecutor who endorses a witness under MCL 767.40a(3) is obliged to exercise due
diligence to produce that witness at trial.” People v Eccles, 260 Mich App 379, 388; 677 NW2d
76 (2004). A prosecutor may be excused from producing an endorsed witness under MCL
767.40a(3) if the witness could not be produced despite the exercise of due diligence. Id. If due
diligence is not shown, the jury should be instructed that it may infer that the missing witness’s
testimony would have been unfavorable to the prosecution’s case. Id. “The test for due
diligence is one of reasonableness, i.e., whether diligent good-faith efforts were made to procure
the testimony, not whether more stringent efforts would have produced it.” People v James
(After Remand), 192 Mich App 568, 571; 481 NW2d 715 (1992). “Due diligence is the attempt
to do everything reasonable, not everything possible” to obtain the presence of the endorsed
witness. People v George, 130 Mich App 174, 178; 342 NW2d 908 (1983).

         We do not agree that defendant was denied effective assistance on this ground.
Primarily, defendant does not establish that these witnesses would have been useful to him at
trial. While these witnesses were present at the Marilyn’s on Monroe during the offense, there is
nothing to suggest that they witnessed the actual shooting. Indeed, Investigator Michael Jackson
testified specifically that Jones told police she had not seen anything. Jackson also testified that
Gaymin did not see the shooting. The only evidence in the record regarding Coleman and
Martin was that defendant knew them and another guest at the party saw Coleman on the night of
the shooting. Moreover, while no due diligence hearing occurred, there is nothing to suggest that
the prosecution did not exercise due diligence in attempting to locate the witnesses, especially in
light of the prosecutor’s statement that the witnesses were avoiding service. Accordingly,
defendant was not denied effective assistance of counsel on this ground.

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        Defendant raises additional issues in a pro se supplemental brief, filed pursuant to
Supreme Court Administrative Order No.2004–6, Standard 4. Defendant first argues that the
trial court erred in admitting police testimony that Jones did not see anything the night of the
shooting. Defendant argues this evidence was inadmissible hearsay, and its admission violated
his rights under the Confrontation Clause. Defendant failed to object to this testimony at trial, so
we review for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999).

        There were several instances of testimony relevant to defendant’s position. The night of
the shooting, police officers Keeth Williams and Antwan Fresh were first to respond to the
scene. At trial, officer Williams testified that he spoke to Jones, but did not reveal the content of
that interview, pursuant to an objection from defendant. Officer Fresh testified that, during his
investigation on the night of the shooting, he obtained information from Williams that identified
defendant as the shooter. Fresh said Williams had obtained the information from a witness.2
Investigator Jackson testified that he relied on witness statements to conduct his investigation,
follow leads, and talk to others. Jackson testified that when he interviewed Jones at the scene
and later in a phone call, she stated that she did not see anything and that he did not get very
much information from her. Off the record, the prosecutor informed the court that he would not
be calling Jones because she could not be located and was avoiding service. During closing
arguments, Verdejo’s attorney argued that the police investigation of Jones was incomplete,
Jones did not appear to testify, and her observations might have been helpful to the defense. In
rebuttal, the prosecutor stated:

               Officer Williams and officer Fresh, couple of first officers there at the
       scene. You heard about their observations when they got there. Williams you
       heard got information from a witness by the name of Cynthia Jones. And you
       heard that’s where he got the information about [defendant].

          Defendant contends that the statement that Jones did not see anything was inadmissible
hearsay. MRE 801(c) defines hearsay as “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.” “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person,
if it is intended by the person as an assertion.” MRE 801(a). Hearsay is not admissible, except
as specifically provided by the rules of evidence. MRE 802. We do not agree with defendant’s
claim. The statement by Investigator Jackson that Jones did not see anything was not admitted
for the truth of the matter asserted. Rather, it was admitted to explain the police investigation
with respect to Jones, and rebut the defense’s suggestions that the police investigation was
deficient in regard to Jones.

       Defendant also argues that admission of this evidence violated his right of confrontation.
“Both the United States and Michigan constitution guarantee a criminal defendant the right to
confront witnesses against him or her.” People v Garland, 286 Mich App 1, 10; 777 NW2d 732


2
  According to Fresh, Scott did not identify defendant by name on the night of the incident, but
did provide a physical description of the suspect.


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(2009). The “Sixth Amendment bars testimonial statements by a witness who does not appear at
trial unless the witness is unavailable and the defendant had a prior opportunity to cross-examine
the witness.” People v Yost, 278 Mich App 341, 370; 749 NW2d 753 (2008). Because the
statement was not made for a primary purpose of proving past events for later use in a criminal
prosecution, it was not testimonial and, accordingly, they were not prohibited by the
Confrontation Clause. Further, because defendant cannot demonstrate error in the admission of
this statement, we also reject defendant’s claim that defense counsel was ineffective for not
objecting. Counsel is not ineffective for failing to raise meritless or futile objections. People v
Eisen, 296 Mich App 326, 329; 820 NW2d 229 (2012).

        While defendant specifically objects to the testimony that Jones did not see anything, he
also suggests that he was prejudiced by the prosecutor’s argument that Jones identified defendant
as the shooter, especially in relation to Jackson’s testimony that Jones did not see anything. We
disagree that defendant was prejudiced regarding the information and arguments relating to
Jones. First, we note that the prosecutor’s statement and Jackson’s testimony are not
irreconcilable. It is possible that Jones initially provided defendant’s name to police, even if she
did not witness the shooting and could not provide anything of evidentiary value for trial.
Further, the fact that defendant was listed as a suspect in the report by the officers at the scene
was cumulative evidence. Scott testified that he also provided this information before going to
the hospital and again at the hospital. Additionally, the prosecutor’s statement was an inference
based on the testimony of the police officers, and made in response to Verdajo’s closing
argument. “A prosecutor may fairly respond to an issue raised by the defendant.” People v
Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008). Finally, the trial court instructed the
jury that the prosecutor’s arguments were not evidence, and the jury is presumed to have
followed its instruction to only consider the evidence when deciding the case. People v Graves,
458 Mich 476, 486; 581 NW2d 229 (1998).

       Affirmed.



                                                             /s/ Mark J. Cavanagh
                                                             /s/ Henry William Saad
                                                             /s/ Karen M. Fort Hood




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