                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 14, 2016
               Plaintiff-Appellee,

v                                                                  No. 325110
                                                                   Wayne Circuit Court
SHAQUILLE DAI-SH GANDY-JOHNSON,                                    LC No. 14-007173-FH

               Defendant-Appellant.


Before: RIORDAN, P.J., and SAAD and M. J. KELLY, JJ.

PER CURIAM.

        Defendant appeals his jury trial convictions of two counts of third-degree criminal sexual
conduct (force or coercion to accomplish sexual penetration) (CSC-III), MCL 750.520d(1)(b).
Because the prosecutor’s comments during closing argument impermissibly shifted the burden of
proof to defendant, thereby denying him a fair trial, we reverse and remand for a new trial.

       This case arises from an alleged sexual assault. The prosecution’s primary witness was
the victim, JH, who testified that after she met up with defendant and his friend, Brandon
Thompson, they all went back to an apartment on West Chicago. JH testified that after
Thompson left the room, she and defendant began to kiss. But shortly thereafter, defendant
became demanding and took JH’s pants off against her will and forced her into having sex.
Defendant did not testify and did not present any evidence.

                       I. INEFFECTIVE ASSISTANCE OF COUNSEL

         Defendant argues that defense counsel rendered ineffective assistance when he failed to
request the jury instruction for a missing witness. Specifically, defendant claims that his trial
counsel should have requested the CJI2d 5.121 instruction, which would have informed the jury
that it could have inferred that the witness, Thompson, who did not testify at trial, would have
testified unfavorably for the prosecution. We disagree.



1
  CJI2d 5.12 specifically states that “_____ is a missing witness whose appearance was the
responsibility of the prosecution. You may infer that this witness’s testimony would have been
unfavorable to the prosecution’s case.”


                                               -1-
       Claims of ineffective assistance of counsel are mixed questions of law and fact. People v
Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). This Court reviews a trial court’s
findings of fact for clear error and reviews questions of constitutional law de novo. Id. The
defendant must establish a factual predicate for the ineffective assistance of counsel claim.
People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Because no evidentiary hearing was held,
our review is for errors apparent from the record. People v Horn, 279 Mich App 31, 38; 755
NW2d 212 (2008).

        To evaluate a claim of ineffective assistance of counsel, this Court uses the standard
established in Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674
(1984). Hoag, 460 Mich at 5-6, citing People v Pickens, 446 Mich 298; 521 NW2d 797 (1994).
For a successful claim of ineffective assistance of counsel, the defendant must show that “(1)
counsel’s performance fell below an objective standard of reasonableness and (2) but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have
been different.” Trakhtenberg, 493 Mich at 51. The effective assistance of counsel is presumed.
People v Roscoe, 303 Mich App 633, 644; 846 NW2d 402 (2014). Further, the defendant must
overcome the presumption that defense counsel’s alleged actions were simply sound trial
strategy. Trakhtenberg, 493 Mich at 52. “[T]his Court will not second-guess counsel regarding
matters of trial strategy, and even if defense counsel was ultimately mistaken, this Court will not
assess counsel’s competence with the benefit of hindsight.” People v Rice (On Remand), 235
Mich App 429, 445; 597 NW2d 843 (1999).

        Pursuant to MCL 767.40a(1), the prosecutor “shall attach to the filed information a list of
all witnesses known to the prosecuting attorney who might be called at trial and all res gestae
witnesses known to the prosecuting attorney or investigating law enforcement officers.” MCL
767.40a(3) further provides that “[n]ot less than 30 days before the trial, the prosecuting attorney
shall send to the defendant or his or her attorney a list of the witnesses the prosecuting attorney
intends to produce at trial.” “Once a witness is endorsed under MCL 767.40a(3), the prosecution
must use due diligence to produce the witness.” People v Duenaz, 306 Mich App 85, 104; 854
NW2d 531 (2014), citing People v Eccles, 260 Mich App 379, 388; 677 NW2d 76 (2004). If the
trial court determines that the prosecutor failed to exercise due diligence to produce an endorsed
witness, “the jury should be instructed that it may infer that the missing witness’s testimony
would have been unfavorable to the prosecution’s case.” Eccles, 260 Mich App at 388-389,
citing CJI2d 5.12.

        Defendant’s claim that his trial counsel was ineffective when he did not request the CJI2d
5.12 instruction must fail because such a request would have been futile, as the prosecution never
actually endorsed Thompson on its witness list. On the sole prosecution witness list included in
the lower court file, Thompson is indeed listed as a potential witness in the case, but he was not
denoted as an endorsed witness that the prosecution intended to produce at trial. The witness list
states, “The witnesses the People intend to produce at trial, pursuant to MCLA 767.40a(3), are
designated by an ‘X’ in the boxes to the left.” But on the sheet, there is no mark next to




                                                -2-
Thompson’s name.2 Thus, without Thompson being an endorsed witness, the prosecution’s
failure to produce him at trial is not a ground for providing the jury with the CJI2d 5.12
instruction. Consequently, any request for a missing witness instruction due to the prosecution’s
failure to produce a witness that it endorsed under MCL 767.40a(3) would have been futile, and
counsel is not ineffective for failing to raise a futile objection or make a futile request. See Horn,
279 Mich App at 42 n 5; People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).

                             II. PROSECUTORIAL MISCONDUCT

      Defendant argues that the prosecutor committed error by making comments in her closing
argument that impermissibly shifted the burden of proof to him. We agree.

       “[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). This Court
“consider[s] issues of prosecutorial misconduct on a case-by-case basis by examining the record
and evaluating the remarks in context, and in light of defendant’s arguments.” People v Thomas,
260 Mich App 450, 454; 678 NW2d 631 (2004).

        “A prosecutor may not imply in closing argument that the defendant must prove
something or present a reasonable explanation for damaging evidence because such an argument
tends to shift the burden of proof.” People v Fyda, 288 Mich App 446, 463-464; 793 NW2d 712
(2010). Further, “a prosecutor may not comment on the defendant’s failure to present evidence
because it is an attempt to shift the burden of proof.” Id. at 464, citing People v Abraham, 256
Mich App 265, 273; 662 NW2d 836 (2003). Additionally, while prosecutors may “argue the
evidence and all reasonable inferences from the evidence as it relates to their theory of the case,”
“[a] prosecutor may not make a statement of fact to the jury that is not supported by evidence
presented at trial and may not argue the effect of testimony that was not entered into evidence.”
People v Unger, 278 Mich App 210, 236, 241; 749 NW2d 272 (2008).

       Defendant claims that the prosecutor impermissibly shifted the burden of proof to
defendant when she made the following statements during her closing argument:

              Now, officer [Beckem] got up on the stand and told you that they looked
       for [Thompson]. We wanted to get a statement from [Thompson] but [he] is no
       where to be found.




2
  To be clear, this was not an instance where the prosecution simply forgot to mark any of its
witnesses. Indeed, of the ten entries on the list, only five of them were marked as being intended
to be produced pursuant to MCL 767.40a(3). If such a list had lacked any such marks, then that
possibly would present a different question because, in that scenario, defense counsel may have
reasonably assumed that all of the witnesses were intended to be endorsed under MCL
767.40a(3), despite the lack of any marks. But we need not offer any opinion on that scenario.


                                                 -3-
                Now you can make inferences and the Judge will tell you that there is
       inferences that can be made. [Thompson] is the only person that could say she is
       a liar. If he’s [sic] so chose.

                He’s the only one [who] could say there’s an independent witness.
       She . . . totally made that up story. She was fine. I came out that room[,] I took
       her home[,] and she was laughing and talking[.] [T]here was no crying[;] there
       was nothing wrong and she went home.

               [Thompson] could potentially exonerate this defendant.

At this point, defense counsel objected because he thought that the prosecutor was attempting to
shift the burden of proof to defendant for him “to prove something,” and the prosecutor replied,
“It’s not shifting the burden[.] I’m talking about [Thompson.] I’m not talking about the
defendant.” After which, the trial court simply stated, “All right. Continue.” The proceeding
continued, as follows:

       [Prosecutor]: But [Thompson] does not do that. [Thompson] leaves his friend
       out to dry, why? Because [Thompson] probably knows that she was upset and
       she was crying when he saw her.

               Now you think about that.

       [Defense Counsel]: Your Honor, this all assumes facts that are not in evidence.
       Brandon has not testified here.

       [Prosecutor]: This is argument.

       [Defense Counsel]: Pure speculation.

       [Prosecutor]: It’s argument.

       THE COURT: Continue.

       We agree with defendant that the prosecutor impermissibly attempted to shift the burden
of proof to the defense. The clear implication from the prosecutor’s statement is that
Thompson’s failure to testify was significant because if he could have contradicted the victim’s
testimony, then the defense would have called him to testify at trial. In other words, according to
the prosecutor’s argument, the defense’s failure to produce evidence—i.e., the witness
Thompson—can and should be viewed as proof that he committed the crime. The prosecutor’s
attempt to frame her comments as being directed at Thompson himself, instead of defendant, is
unavailing. Obviously, Thompson cannot personally inject himself into the proceeding; one
party must call him as a witness. And because the prosecutor was unable to locate Thompson
and did not call him to testify, it unavoidably would fall to the defense to call Thompson as a
witness. Thus, any comment about the failure of Thompson to testify necessarily implies that




                                                -4-
defendant should have presented him as a witness, which qualifies as a comment regarding
defendant’s failure to present evidence. See Fyda, 288 Mich App at 464, Abraham, 256 Mich
App at 273. Such a comment is not allowed, as it attempts to shift the burden of proof.3

        Further, we do not believe that the court’s instruction to the jury that the attorney’s
comments were not evidence were able to cure this defect. Notably, when defense counsel
objected to the prosecutor’s comments, the trial court merely instructed the prosecutor to
continue. Thus, the clear impression the court gave was that the argument presented by the
prosecutor was indeed permissible and that the jury was allowed to infer that Thompson’s failure
to testify could be viewed against defendant. As such, the later instruction that counsel’s
comments were only to be considered as argument and not as evidence does nothing address the
harm that the comment caused.

         Because there was virtually no corroborating physical evidence to support the rape
allegations, the case essentially came down to whether the jury found JH credible. And because
the prosecutor was allowed to argue that the jury could infer that JH was credible from the
defense’s failure to produce Thompson—coupled with the trial court’s implicit approval of such
an inference—we cannot conclude that the error was harmless. In other words, because it is not
clear beyond a reasonable doubt that this constitutional error was harmless, reversal for a new
trial is warranted. See People v Shepherd, 472 Mich 343, 347; 697 NW2d 144 (2005) (“A
constitutional error is harmless if it is clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error.”) (quotation marks, brackets, and citation
omitted).


3
  We note that the present situation is distinguishable from other situations, where it is
permissible for the prosecutor to comment on the lack of a defense’s corroborating evidence.
For instance, “when a defendant advances an alternate theory or alibi,” the prosecution may
comment on the nonproduction of corroborating alibi witnesses. People v Fields, 450 Mich 94,
112; 538 NW2d 356 (1995); see also People v Spivey, 202 Mich App 719, 351-352; 310 NW2d
238 (1981) (“It is well settled that a prosecutor is permitted to comment on a defendant’s failure
to produce ‘corroborating’ witnesses whenever the defendant takes the stand and testified on his
own behalf.”) (emphasis added).
        But in the present case, the defense presented no evidence. Simply put, the defense never
made any claim to the jury that Thompson viewed the encounter between defendant and JH and
could discount JH’s version of events. Instead, it was the prosecution’s witness JH who made
the claim that Thompson was present and viewed, at least part of, the encounter. Thus, this
situation is more akin to People v Shannon, 88 Mich App 138, 142; 276 NW2d 546 (1979),
where the defendant did not testify at trial, and it was erroneous for the jury to consider that
defendant failed to produce an alibi witness. As the Shannon Court stated, “At issue is the jury’s
ability to draw an impermissible inference of guilt from defendant’s decision not to call [a]
witness and its relation to his involvement in the charged crime. A jury is left with the
impression that by defendant’s unsuccessful attempt to [produce the witness], guilt is rendered
more presumable and apparent.” Id. Although Shannon dealt with the failure to call alibi
witnesses, the underpinning of its holding nevertheless is applicable here.


                                                -5-
                              III. RIGHT TO CONFRONTATION

        Defendant argues that the trial court violated his Confrontation Clause rights by admitting
into evidence JH’s sexual assault nurse examiner (SANE) report. We disagree. Defendant failed
to raise a Confrontation Clause claim at the trial court. Accordingly, we review this unpreserved
constitutional issue for plain error affecting defendant’s substantial rights. People v Putman, 309
Mich App 240, 245-246; 870 NW2d 593 (2015).

        Defendant is not entitled to a new trial based on his Confrontation Clause claim. He
appears to conflate two potential Confrontation Clause issues. First, he argues that statements
made by JH to the SANE, specifically that defendant threatened to get a gun during the assault,
amounted to testimonial hearsay. Then, defendant asserts that, because the SANE report was
admitted into evidence through Amanda Taylor, who did not examine JH or prepare the report,
the court violated defendant’s Confrontation Clause rights. Specifically, he contends that
defense counsel could not cross-examine the report’s author regarding whether JH’s lack of
injuries, as stated in the report, called into question her story, or how any threat of a weapon
could have been relevant to JH’s medical diagnosis.

         The Sixth Amendment of the United States Constitution, as applied to the states through
the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.” US Const, Am VI; People v Buie,
285 Mich App 401, 407-408; 775 NW2d 817 (2009). The Confrontation Clause applies not only
to in-court testimony, but also to out-of-court statements introduced at trial. Crawford v
Washington, 541 US 36, 50-51; 124 S Ct 1354; 158 L Ed 2d 177 (2004). Even then, only out-of-
court statements that are testimonial implicate the Confrontation Clause. Id. at 50-52; People v
Taylor, 482 Mich 368, 377; 759 NW2d 361 (2008). Furthermore, the Confrontation Clause bars
the admission of these out-of-court testimonial statements only when the declarant is unavailable
to testify and where defendant did not have a prior opportunity to cross-examine the declarant.
Crawford, 541 US at 59, 68.

         Here, we need not determine whether statements made by JH to the nurse and reflected in
the SANE report amounted to testimonial hearsay because the declarant of those statements, JH,
testified at trial and was available for cross-examination. “[W]hen the declarant appears for
cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his
prior testimonial statements.” Id. at 59 n 9. Accordingly, there can be no Confrontation Clause
issue regarding any out-of-court statements JH made.

        Defendant also appears to argue that the observations or conclusions made by the
examining nurse and contained in the SANE report are testimonial. Thus, he claims that the
court’s admission of the report violated his Confrontation Clause rights because he could not
cross-examine the report’s author regarding the reliability of those observations and conclusions.
Assuming without deciding that the author’s statements in the report were indeed testimonial
because these out-of-court statements “would be available for use at a later trial,” Id. at 52; see
also Davis v Washington, 547 US 813, 822; 126 S Ct 2266; 165 L Ed 2d 224 (2006); People v
Garland, 286 Mich App 1, 10; 777 NW2d 732 (2009), defendant fails to show how this potential
Confrontation Clause violation could have affected the outcome of trial. On the contrary, the
conclusions and observations of the report appear to benefit defendant. While the prosecutor

                                                -6-
relied on JH’s other admitted medical records that indicated that she suffered bruising on her
wrist (to corroborate JH’s testimony that defendant constrained her during their encounter),
Taylor testified that the SANE report noted that, after a thorough “head to toe” examination, JH
exhibited “no injuries.” Thus, the observations in the SANE report did not tend to show that the
sex between defendant and JH was forced or coerced, which was the dispositive question at trial.
Therefore, to the extent that any of the nurse’s own observations and conclusions, as noted in the
report, was testimonial and admitted in violation of the Confrontation Clause, defendant has
failed to establish how any error affected his substantial rights.4

                                       IV. SENTENCING

        Defendant also raises several sentencing issues. However, because of our decision to
remand for a new trial based on the prosecutor’s comments, these issues are moot, and we
decline to address them. See People v Rutherford, 208 Mich App 198, 204; 526 NW2d 620
(1994).

       We reverse and remand for a new trial. We do not retain jurisdiction.



                                                            /s/ Michael J. Riordan
                                                            /s/ Henry William Saad
                                                            /s/ Michael J. Kelly




4
  Defendant again primarily relies on the statements in the report that defendant purportedly
threatened JH that he was going to get a gun. But, as already discussed, the constitutional
admissibility of those statements is dependent upon the JH’s availability to testify, not the nurse
who simply scribed JH’s statements to the report.


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